Great Lakes Pilotage Rates-2015 Annual Review and Adjustment, 29975-29978 [2015-12734]
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Federal Register / Vol. 80, No. 100 / Tuesday, May 26, 2015 / Rules and Regulations
EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP—Continued
State citation [Chapter 16–20 or
45 CSR ]
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I.
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
46 CFR Part 401
[Docket No. USCG–2014–0481]
RIN 1625–AC22
Great Lakes Pilotage Rates—2015
Annual Review and Adjustment
Coast Guard, DHS.
Final rule; change in effective
AGENCY:
date.
The Coast Guard is advancing
the effective date for the 2015 final rule
which published on February 26, 2015,
adjusting rates for pilotage services on
the Great Lakes in accordance with a
full ratemaking procedure. The rate
adjustments made by the February 2015
final rule are unchanged, but instead of
taking effect on August 1, 2015, the rates
will take effect June 2, 2015. This
rulemaking rule promotes the Coast
Guard’s strategic goal of maritime safety.
DATES: The effective date for the final
rule published February 26, 2015 (80 FR
10365), is changed from August 1, 2015,
to June 2, 2015.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Todd Haviland, Director,
Great Lakes Pilotage, Commandant (CG–
WWM–2), Coast Guard; telephone 202–
372–2037, email
Todd.A.Haviland@uscg.mil, or fax 202–
372–1914.
SUPPLEMENTARY INFORMATION:
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Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Background
IV. 2014 Litigation
V. Good Cause
VI. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
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Abbreviations
CFR Code of Federal Regulations
E.O. Executive Order
FR Federal Register
MISLE Marine Information for Safety and
Law Enforcement
NAICS North American Industry
Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
§ Section symbol
U.S.C. United States Code
BILLING CODE 6560–50–P
SUMMARY:
EPA Approval date
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[FR Doc. 2015–12486 Filed 5–22–15; 8:45 am]
ACTION:
State effective
date
Title/Subject
II. Regulatory History
On September 4, 2014, we published
a notice of proposed rulemaking
(NPRM) titled ‘‘Great Lakes Pilotage
Rates—2015 Annual Review and
Adjustment’’ in the Federal Register.1
On December 1, 2014, we published
revenue audits of the pilot associations
and reopened the public comment
period in the Federal Register.2 On
February 26, 2015, we published a final
rule entitled ‘‘Great Lakes Pilotage
Rates—2015 Annual Review and
Adjustment.’’ 3
III. Background
The vessels affected by this
rulemaking are those engaged in foreign
trade upon the U.S. waters of the Great
Lakes. United States and Canadian
‘‘lakers,’’ 4 which account for most
commercial shipping on the Great
Lakes, are not affected.5 For further
background information, please see the
February 26, 2015 final rule at 80 FR
10365 at 10366. For further information
summarizing the February final rule, see
pages 10368 through 10383 of that
document.
The basis of this rule is the Great
Lakes Pilotage Act of 1960 (‘‘the Act’’)
(46 U.S.C. Chapter 93), which requires
U.S. vessels operating ‘‘on register’’ 6
and foreign vessels to use U.S. or
Canadian registered pilots while
transiting the U.S. waters of the St.
1 79
FR 52602 (Sept. 4, 2014).
FR 71082 (Dec. 1, 2014).
3 80 FR 10365 (Feb. 26, 2015).
4 A ‘‘laker’’ is a commercial cargo vessel
especially designed for and generally limited to use
on the Great Lakes.
5 46 U.S.C. 9302.
6 ‘‘On register’’ means that the vessel’s certificate
of documentation has been endorsed with a registry
endorsement, and therefore, may be employed in
foreign trade or trade with Guam, American Samoa,
Wake, Midway, or Kingman Reef. 46 U.S.C. 12105,
46 CFR 67.17.
2 79
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Additional explanation/citation at 40 CFR 52.2565
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Lawrence Seaway and the Great Lakes
system.7 The Act requires the Secretary
to ‘‘prescribe by regulation rates and
charges for pilotage services, giving
consideration to the public interest and
the costs of providing the services.’’ 8
Rates must be established or reviewed
and adjusted each year, not later than
March 1. Base rates must be established
by a full ratemaking at least once every
5 years, and in years when base rates are
not established, they must be reviewed
and, if necessary, adjusted.9 The
Secretary’s duties and authority under
the Act have been delegated to the Coast
Guard.10 Coast Guard regulations
implementing the Act appear in parts
401 through 404 of Title 46, Code of
Federal Regulations (CFR). Procedures
for use in establishing base rates appear
in 46 CFR part 404, appendix A, and
procedures for annual review and
adjustment of existing base rates appear
in 46 CFR part 404, appendix C.
This final rule advances the effective
date of the 2015 final rule published on
February 26, 2015, which established
new base pilotage rates, using the
methodology found in 46 CFR part 404,
appendix A.
IV. 2014 Litigation
The Coast Guard published its ‘‘Great
Lakes Pilotage Rates—2014 Annual
Review and Adjustment’’ final rule on
March 4, 2014. Rates set in that rule
took effect on August 1, 2014, and have
remained in effect since then.11 Shortly
after publication, the three Great Lakes
pilot associations filed suit 12 under the
Administrative Procedure Act (APA),13
challenging the manner in which the
Coast Guard applied American Maritime
Officers Union wage and benefit data.
Under the Coast Guard ratemaking
methodology, that data significantly
affects rate adjustments. On March 27,
2015, the court issued a memorandum
opinion holding that the Coast Guard
7 46
8 46
U.S.C. 9302(a)(1).
U.S.C. 9303(f).
9 Id.
10 Department of Homeland Security Delegation
No. 0170.1, paragraph (92)(f).
11 79 FR 12084 (Mar. 4, 2014).
12 The case is St. Lawrence Seaway Pilots
Association, Inc., et al., v. United States Coast
Guard, Civil Action No. 14–cv–392 (TSC), (D.D.C.
March 27, 2015).
13 5 U.S.C. 551 et seq.
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had not properly applied the union
data, and was therefore arbitrary and
capricious in setting the 2014 rates,
which consequently were set lower than
they should have been. The court
ordered the parties to brief the
appropriate remedy, recognizing that
the normal remedy of vacating and
remanding the 2014 rule would be
counterproductive because the 2013
rates are lower than the rates set in the
2014 rule. Given that the usual remedies
are impractical, the parties have
discussed a remedy that advances the
effective date for 2015 rates set in our
2015 final rule.14
V. Good Cause
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The Coast Guard is advancing the
August 1, 2015 effective date of the 2015
final rule without following the usual
APA procedures for prior notice and
public opportunity to comment, and for
thirty days to elapse between
publication of a rule and the effective
date of that rule. Under 5 U.S.C.
553(b)(3)(B) and 5 U.S.C. 553(d), the
Coast Guard finds that it has good cause
to depart from these procedures because
to follow those procedures would be
impracticable and contrary to public
interest.
Standard APA procedures would
require publishing a notice of proposed
rulemaking, taking and considering
public comments on that notice,
publishing a second document actually
advancing the effective date, and then
waiting thirty days before that
advancement could take effect.
However, effective implementation of
the remedy depends on acting as soon
as practicable to advance the current
August 1, 2015 effective date for the
2015 rates. The effectiveness of the
remedy is reduced by each day that
advancement of the effective date is
delayed, thereby leaving the 2014 rates
invalidated by the court in place and
reducing the additional compensation
that the pilots receive from
advancement. Delay in order to follow
standard APA notice-and-comment
rulemaking procedures is therefore
impracticable, because any delay would
14 Under this final rule, some vessels will pay
higher rates prior to August 1, 2015 than they
otherwise would have. Under the 2014 final rule.
Note, however, that Canadian rates for 2015 took
effect upon the opening of the shipping season in
early spring 2015 and are higher than 2014
Canadian rates. Vessels are assigned either a U.S.
or a Canadian pilot when they enter the Great
Lakes, and therefore cannot know in advance
whether they will be subject to U.S. or Canadian
rates. With advancement of the 2015 effective date,
henceforth all vessels will pay 2015 rates regardless
of whether they are assigned a U.S. or Canadian
pilot, rather than a 2014 rate if assigned a U.S. pilot
and a 2015 rate if assigned a Canadian pilot.
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largely, if not wholly, defeat the
remedy’s purpose.15
Delaying the implementation of this
rule to follow standard APA notice-andcomment rulemaking procedures is also
contrary to public interest. The Coast
Guard is statutorily required to set Great
Lakes pilotage rates ‘‘giving
consideration to the public interest and
the costs of providing services.’’ 16 The
Coast Guard’s goal in setting pilotage
rates is to serve the public interest in
assuring ‘‘safe, efficient, and reliable’’
pilotage service on the Great Lakes.17
The court has accepted the pilot
associations’ argument that the 2014
rates inadequately compensate them for
the cost of providing service. Inadequate
compensation reduces the funds that the
plaintiff pilot associations need to
provide safe, efficient, and reliable
pilotage, because it weakens their ability
to operate, attract and retain qualified
pilots, and maintain pilot boats and
other infrastructure, all of which are
essential to providing current and future
pilotage services. The intended effect of
the remedy of advancing the effective
date of the 2015 rates is to mitigate the
impact of the inadequate compensation
provided by the invalidated 2014 rates.
Therefore any delay in implementing
the remedy, diminishes the Coast
Guard’s ability to mitigate the
inadequate compensation of the 2014
rates and would harm the public
interest in assuring safe, efficient, and
reliable pilotage.18
VI. Regulatory Analyses
We developed this rule after
considering numerous statutes and
E.O.s related to rulemaking. Below we
summarize our analyses based on these
statutes or E.O.s.
A. Regulatory Planning and Review
Executive Orders 12866, Regulatory
Planning and Review, and 13563,
Improving Regulation and Regulatory
Review, direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
15 Good cause is ‘‘. . . appropriately invoked
when the timing and disclosure requirements of the
usual procedures would defeat the purpose of the
proposal.’’ Mack Trucks, Inc. v. EPA, 682 F.3d 87,
95 (D.C. Cir. 2012). A good cause ‘‘impracticability’’
finding may be upheld where quick action is
needed to fulfill the goal of a court-ordered
deadline. Asiana Airlines, 134 F.3d 393, 398 (D.C.
Cir. 1998).
16 46 U.S.C. 9303(f).
17 See 80 FR 10365 (Feb. 26, 2015).
18 See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95
(D.C. Cir. 2012); Asiana Airlines, 134 F.3d 393, 398
(D.C. Cir. 1998).
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environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
This rule is not a significant
regulatory action under section 3(f) of
E.O. 12866 as supplemented by E.O.
13563. The Office of Management and
Budget (OMB) has not reviewed it under
E.O. 12866.
Below is our analysis of the costs and
benefits of the rule; this analysis assists
in ascertaining the probable impacts of
this rule on industry. The Coast Guard
is advancing the effective date for the
February 26, 2015 final rule adjusting
rates for pilotage services on the Great
Lakes in accordance with a full
ratemaking procedure. The rate
adjustments made by the February 2015
final rule are unchanged, but instead of
taking effect on August 1, 2015, the rates
will take effect June 2, 2015. We
estimate that shippers will experience
an increase in payments of
approximately $283,761 across all three
districts as a result of this rulemaking.
A regulatory assessment follows.
The Coast Guard is advancing the
effective date of the final rule published
on February 26, 2015, which established
new base 2015 pilotage rates. This
action leads to an increase in the cost
per unit of service to shippers in all
three districts for the additional period
that the 2015 rates will be in effect. The
calculations of the rates in the 2014
ratemaking 19 and the 2015
ratemaking 20 remain unchanged. The
shippers affected by these rate
adjustments are those owners and
operators of domestic vessels operating
on register (employed in foreign trade)
and owners and operators of foreign
vessels on a route within the Great
Lakes system. These owners and
operators must have pilots or pilotage
service as required by 46 U.S.C. 9302.
There is no minimum tonnage limit or
exemption for these vessels. The statute
applies only to commercial vessels and
not to recreational vessels.
Owners and operators of other vessels
that are not affected by this final rule,
such as recreational boats and vessels
operating only within the Great Lakes
system, may elect to purchase pilotage
services. However, this election is
voluntary and does not affect our
calculation of the rate and is not a part
of our estimated national cost to
shippers.
19 79
20 80
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FR 10365 (Feb. 26, 2015).
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We used 2011–2013 vessel arrival
data from the Coast Guard’s Marine
Information for Safety and Law
Enforcement (MISLE) system to estimate
the average annual number of vessels
affected by the rate adjustment. Using
that period, we found that
approximately 114 different vessels
journeyed into the Great Lakes system
annually. These vessels entered the
Great Lakes by transiting at least one of
the three pilotage districts before
leaving the Great Lakes system. These
vessels often made more than one
distinct stop, docking, loading, and
unloading at facilities in Great Lakes
ports. Of the total trips for the 114
vessels, there were approximately 353
annual U.S. port arrivals before the
vessels left the Great Lakes system,
based on 2011–2013 vessel data from
MISLE.
We estimate the additional impact
(cost increases) of the rate adjustment in
this rule to be the difference between
the 2014 and 2015 pilotage rates,
multiplied by the additional bridge
hours resulting from advancing the 2015
rate effective date. For this analysis, we
assumed the earliest practicable
effective date the 2015 rates could be
advanced to is June 1, 2015. This would
add an additional two months of bridge
hours from the August 1, 2015 effective
date set in the February 26, 2015 final
rule. Table 1 details the additional cost
increases by area and district as a result
of this rulemaking.
TABLE 1—IMPACT OF THE RULE BY AREA AND DISTRICT ($U.S.; NON-DISCOUNTED)
Area
2014 Pilotage
rate 21
2015 Pilotage
rate 22
2014 Total
bridge hours 23
Difference in
2014 and
2015 rates
Additional
bridge hours
(June and July
2015) 24
Area 1 ......................................................
Area 2 ......................................................
Total, District One ....................................
Area 4 ......................................................
Area 5 ......................................................
Total, District Two ....................................
Area 6 ......................................................
Area 7 ......................................................
Area 8 ......................................................
Total, District Three .................................
System Total ............................................
$472.50
291.96
........................
210.40
521.64
........................
204.95
495.01
191.34
........................
........................
$519.74
321.15
........................
231.44
573.80
........................
225.45
544.52
210.47
........................
........................
5,116
5,429
........................
5,814
5,052
........................
9,611
3,023
7,540
........................
........................
$47.24
29.19
........................
21.04
52.16
........................
20.50
49.51
19.13
........................
........................
1,137
1,206
........................
1,292
1,123
........................
2,136
672
1,676
........................
........................
Total cost
$53,707
35,216
88,923
27,184
58,558
85,742
43,783
33,260
32,053
109,097
283,761
* Some values may not total due to rounding.
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We estimate that shippers will
experience an increase in payments of
approximately $283,761 across all three
districts as a result of this rulemaking.
The resulting increase in costs is the
change in payments from shippers to
pilots from advancing the effective date
of the 2015 rates. This figure is
equivalent to the total additional
payments that shippers would incur for
pilotage services. This figure, however,
is dependent on a June 1, 2015 effective
date for this rulemaking. Any delays in
the effective date will result in a lower
cost impact to the shippers.
To calculate an exact cost per vessel
is difficult because of the variation in
vessel types, routes, port arrivals,
commodity carriage, time of season,
conditions during navigation, and
preferences for the extent of pilotage
services on designated and
undesignated portions of the Great
Lakes system. Some owners and
21 2014 rates are from 2014 final rule, ‘‘Great
Lakes Pilotage Rates—2014 Annual Review and
Adjustment’’, 79 FR 12084 (Mar. 4, 2014).
22 2015 rates are from 2015 final rule, ‘‘Great
Lakes Pilotage Rates—2015 Annual Review and
Adjustment’’, 80 FR 10365 (Feb. 26, 2015).
23 Bridge hours are from 2015 final rule, ‘‘Great
Lakes Pilotage Rates—2015 Annual Review and
Adjustment’’, 80 FR 10365 (Feb. 26, 2015).
24 Bridge hours were calculated by dividing the
2014 bridge hours by the number of months in the
shipping season (nine), and the multiplying by two
months.
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operators would pay more and some
would pay less, depending on the
distance and the number of port arrivals
of their vessels’ trips.
This rulemaking provides the pilots
with additional compensation that will
partially offset revenue losses due to the
lower 2014 rates, during the months
when those rates would otherwise
remain in effect. This rulemaking helps
assure safe, efficient, and reliable
pilotage by increasing the pilot
compensation that is artificially low due
to the the 2014 rates invalidated by the
court.
B. Small Entities
In accordance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), rules
that are exempt from APA notice and
comment requirements are also exempt
from the Regulatory Flexibility Act
requirements when the agency for good
cause finds that notice and public
procedure thereon are impracticable,
unnecessary, or contrary to the public
interest. As discussed previously, Coast
Guard for good cause finds that notice
and comment are impracticable and
contrary to public interest.
Consequently, no regulatory flexibility
analysisis is required.
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C. Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we offered to assist small entities in
understanding this rule so that they can
better evaluate its effects on them and
participate in the rulemaking. The Coast
Guard will not retaliate against small
entities that question or complain about
this rule or any policy or action of the
Coast Guard.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call 1–
888–REG–FAIR (1–888–734–3247).
D. Collection of Information
This rule calls for no new collection
of information under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501–
3520. This rule does not change the
burden in the collection currently
approved by the OMB under Control
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Number 1625–0086, Great Lakes
Pilotage Methodology.
E. Federalism
A rule has implications for federalism
under E.O. 13132, Federalism, if it has
a substantial direct effect on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. We have analyzed
this rule under that order and have
determined that it is consistent with the
fundamental federalism principles and
preemption requirements described in
E.O. 13132. Our analysis is explained
below. Congress directed the Coast
Guard to establish ‘‘rates and charges for
pilotage services.’’ 46 U.S.C. 9303(f).
This regulation is issued pursuant to
that statute and is preemptive of state
law as specified in 46 U.S.C. 9306.
Under 46 U.S.C. 9306, a ‘‘State or
political subdivision of a State may not
regulate or impose any requirement on
pilotage on the Great Lakes.’’
As a result, States or local
governments are expressly prohibited
from regulating within this category.
Therefore, this rule is consistent with
the principles of federalism and
preemption requirements in E.O. 13132.
Dated: May 20, 2015.
Gary C. Rasicot,
Director, Marine Transportation Systems,
U.S. Coast Guard.
[FR Doc. 2015–12734 Filed 5–22–15; 8:45 am]
BILLING CODE 9110–04–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 52
[WC Docket No. 07–244; CC Docket Nos.
95–116, 99–200; DA 14–842]
Local Number Portability Porting
Interval and Validation Requirements;
Telephone Number Portability;
Numbering Resource Optimization
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) adopted several
recommendations of the North
American Numbering Council (NANC)
pertaining to local number portability
(LNP). Also, the Commission clarified
that, notwithstanding the NANC’s
preference for area code overlays over
area code splits, the states still have the
option to choose the best means of
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SUMMARY:
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implementing area code relief for their
citizens.
DATES: Effective June 25, 2015.
FOR FURTHER INFORMATION CONTACT:
Sanford Williams, Wireline Competition
Bureau, Competition Policy Division,
(202) 418–1580, or send an email to
sanford.williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order in
WC Docket No. 07–244; CC Docket Nos.
95–116, 99–200; DA 14–482 adopted
and released on June 20, 2014. The full
text of this document is available for
public inspection during regular
business hours in the FCC Reference
Information Center, Portals II, 445 12th
Street SW., Room CY–A257,
Washington, DC 20554. It is available on
the Commission’s Web site at https://
www.fcc.gov.
I. Order
1. In this Order, we adopt several
recommendations of the NANC, a
federal advisory committee for
telephone number administration,
pertaining to LNP. The Communications
Act defines number portability as ‘‘the
ability of users of telecommunications
services to retain, at the same location,
existing telecommunications numbers
without impairment of quality,
reliability, or convenience when
switching from one telecommunications
carrier to another. This means that
customers have the ability to keep their
telephone numbers if they change
service providers, with a few
exceptions. This process is called
telephone number ‘‘porting.’’ These
recommendations all involve changes to
the LNP ‘‘provisioning flows’’ and are
intended to improve the telephone
number porting process. Telephone
number porting is accomplished by the
old and new service providers working
together and following a uniform set of
flow charts, referred to as the ‘‘LNP
provisioning flows.’’ These flows
consist of diagrams and accompanying
narratives which explain the processes
service providers follow in specific
porting scenarios. The
recommendations addressed in this
Order are changes to the narratives that
accompany the diagrams.
2. These improvements include
revising existing processes for
cancelling a number port request,
clarifying the timeline for re-using
disconnected ported numbers, and
stopping new service providers from
prematurely activating ports. Also in
this Order, we clarify that,
notwithstanding the NANC’s preference
for area code overlays over area code
splits, the states still have the option to
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choose the best means of implementing
area code relief for their citizens. An
area code ‘‘split’’ occurs when the
geographic area served by an area code
is divided into two or more geographic
parts. An area code overlay occurs when
a new area code is introduced to serve
the same geographic area as one or more
existing area codes. In both scenarios,
callers must dial a ten-digit telephone
number (three-digit area code, plus
seven-digit number) to reach end users.
II. Background
3. In May 2010, the Commission
adopted various provisioning flows in
its LNP Standard Fields Order.
However, the Commission recognized
that industry developments would
likely require changes to these flows. It
also acknowledged that ‘‘the NANC is
best situated to monitor the continued
effectiveness of the provisioning process
flows, and make recommendations
when changes are needed.’’ Thus, the
Commission decided that the
provisioning flows adopted in that order
would remain in effect until the
Commission approves revised
provisioning flows based on
recommendations from the NANC. The
Commission delegated authority to the
Chief of the Wireline Competition
Bureau (Bureau) to approve such
recommended revisions and directed
the NANC to make the revised
provisioning flows, once approved,
available to the public on the NANC
Web site.
4. Flows for Cancellations and
Disconnections. On January 2, 2013, the
NANC submitted a letter to the Bureau
recommending revisions to the
provisioning flows for port
cancellations, termed by the NANC as
the ‘‘Cancel Flows.’’ These flows apply
when a customer asks a new service
provider to port his or her number, and
then subsequently decides to cancel that
request and remain with his or her
current provider. The customer must
notify one of the providers of the
cancellation. The NANC recommended
three revisions to these flows. The first
revision clarifies the responsibilities of
the current and new service providers.
It states that if the customer contacts the
current provider, that provider may
choose to advise the customer to call the
new provider to cancel the port request.
If the customer contacts the new
provider, that provider must cancel the
port. The second revision states that if
the current provider decides to cancel
the port request, it must obtain
verifiable authority from the customer,
such as a Letter of Authorization, dated
after the initial port request. The new
provider must then process the
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[Federal Register Volume 80, Number 100 (Tuesday, May 26, 2015)]
[Rules and Regulations]
[Pages 29975-29978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12734]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Part 401
[Docket No. USCG-2014-0481]
RIN 1625-AC22
Great Lakes Pilotage Rates--2015 Annual Review and Adjustment
AGENCY: Coast Guard, DHS.
ACTION: Final rule; change in effective date.
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SUMMARY: The Coast Guard is advancing the effective date for the 2015
final rule which published on February 26, 2015, adjusting rates for
pilotage services on the Great Lakes in accordance with a full
ratemaking procedure. The rate adjustments made by the February 2015
final rule are unchanged, but instead of taking effect on August 1,
2015, the rates will take effect June 2, 2015. This rulemaking rule
promotes the Coast Guard's strategic goal of maritime safety.
DATES: The effective date for the final rule published February 26,
2015 (80 FR 10365), is changed from August 1, 2015, to June 2, 2015.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Todd Haviland, Director, Great Lakes Pilotage,
Commandant (CG-WWM-2), Coast Guard; telephone 202-372-2037, email
Todd.A.Haviland@uscg.mil, or fax 202-372-1914.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Background
IV. 2014 Litigation
V. Good Cause
VI. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
I. Abbreviations
CFR Code of Federal Regulations
E.O. Executive Order
FR Federal Register
MISLE Marine Information for Safety and Law Enforcement
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec. Section symbol
U.S.C. United States Code
II. Regulatory History
On September 4, 2014, we published a notice of proposed rulemaking
(NPRM) titled ``Great Lakes Pilotage Rates--2015 Annual Review and
Adjustment'' in the Federal Register.\1\ On December 1, 2014, we
published revenue audits of the pilot associations and reopened the
public comment period in the Federal Register.\2\ On February 26, 2015,
we published a final rule entitled ``Great Lakes Pilotage Rates--2015
Annual Review and Adjustment.'' \3\
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\1\ 79 FR 52602 (Sept. 4, 2014).
\2\ 79 FR 71082 (Dec. 1, 2014).
\3\ 80 FR 10365 (Feb. 26, 2015).
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III. Background
The vessels affected by this rulemaking are those engaged in
foreign trade upon the U.S. waters of the Great Lakes. United States
and Canadian ``lakers,'' \4\ which account for most commercial shipping
on the Great Lakes, are not affected.\5\ For further background
information, please see the February 26, 2015 final rule at 80 FR 10365
at 10366. For further information summarizing the February final rule,
see pages 10368 through 10383 of that document.
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\4\ A ``laker'' is a commercial cargo vessel especially designed
for and generally limited to use on the Great Lakes.
\5\ 46 U.S.C. 9302.
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The basis of this rule is the Great Lakes Pilotage Act of 1960
(``the Act'') (46 U.S.C. Chapter 93), which requires U.S. vessels
operating ``on register'' \6\ and foreign vessels to use U.S. or
Canadian registered pilots while transiting the U.S. waters of the St.
Lawrence Seaway and the Great Lakes system.\7\ The Act requires the
Secretary to ``prescribe by regulation rates and charges for pilotage
services, giving consideration to the public interest and the costs of
providing the services.'' \8\ Rates must be established or reviewed and
adjusted each year, not later than March 1. Base rates must be
established by a full ratemaking at least once every 5 years, and in
years when base rates are not established, they must be reviewed and,
if necessary, adjusted.\9\ The Secretary's duties and authority under
the Act have been delegated to the Coast Guard.\10\ Coast Guard
regulations implementing the Act appear in parts 401 through 404 of
Title 46, Code of Federal Regulations (CFR). Procedures for use in
establishing base rates appear in 46 CFR part 404, appendix A, and
procedures for annual review and adjustment of existing base rates
appear in 46 CFR part 404, appendix C.
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\6\ ``On register'' means that the vessel's certificate of
documentation has been endorsed with a registry endorsement, and
therefore, may be employed in foreign trade or trade with Guam,
American Samoa, Wake, Midway, or Kingman Reef. 46 U.S.C. 12105, 46
CFR 67.17.
\7\ 46 U.S.C. 9302(a)(1).
\8\ 46 U.S.C. 9303(f).
\9\ Id.
\10\ Department of Homeland Security Delegation No. 0170.1,
paragraph (92)(f).
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This final rule advances the effective date of the 2015 final rule
published on February 26, 2015, which established new base pilotage
rates, using the methodology found in 46 CFR part 404, appendix A.
IV. 2014 Litigation
The Coast Guard published its ``Great Lakes Pilotage Rates--2014
Annual Review and Adjustment'' final rule on March 4, 2014. Rates set
in that rule took effect on August 1, 2014, and have remained in effect
since then.\11\ Shortly after publication, the three Great Lakes pilot
associations filed suit \12\ under the Administrative Procedure Act
(APA),\13\ challenging the manner in which the Coast Guard applied
American Maritime Officers Union wage and benefit data. Under the Coast
Guard ratemaking methodology, that data significantly affects rate
adjustments. On March 27, 2015, the court issued a memorandum opinion
holding that the Coast Guard
[[Page 29976]]
had not properly applied the union data, and was therefore arbitrary
and capricious in setting the 2014 rates, which consequently were set
lower than they should have been. The court ordered the parties to
brief the appropriate remedy, recognizing that the normal remedy of
vacating and remanding the 2014 rule would be counterproductive because
the 2013 rates are lower than the rates set in the 2014 rule. Given
that the usual remedies are impractical, the parties have discussed a
remedy that advances the effective date for 2015 rates set in our 2015
final rule.\14\
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\11\ 79 FR 12084 (Mar. 4, 2014).
\12\ The case is St. Lawrence Seaway Pilots Association, Inc.,
et al., v. United States Coast Guard, Civil Action No. 14-cv-392
(TSC), (D.D.C. March 27, 2015).
\13\ 5 U.S.C. 551 et seq.
\14\ Under this final rule, some vessels will pay higher rates
prior to August 1, 2015 than they otherwise would have. Under the
2014 final rule. Note, however, that Canadian rates for 2015 took
effect upon the opening of the shipping season in early spring 2015
and are higher than 2014 Canadian rates. Vessels are assigned either
a U.S. or a Canadian pilot when they enter the Great Lakes, and
therefore cannot know in advance whether they will be subject to
U.S. or Canadian rates. With advancement of the 2015 effective date,
henceforth all vessels will pay 2015 rates regardless of whether
they are assigned a U.S. or Canadian pilot, rather than a 2014 rate
if assigned a U.S. pilot and a 2015 rate if assigned a Canadian
pilot.
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V. Good Cause
The Coast Guard is advancing the August 1, 2015 effective date of
the 2015 final rule without following the usual APA procedures for
prior notice and public opportunity to comment, and for thirty days to
elapse between publication of a rule and the effective date of that
rule. Under 5 U.S.C. 553(b)(3)(B) and 5 U.S.C. 553(d), the Coast Guard
finds that it has good cause to depart from these procedures because to
follow those procedures would be impracticable and contrary to public
interest.
Standard APA procedures would require publishing a notice of
proposed rulemaking, taking and considering public comments on that
notice, publishing a second document actually advancing the effective
date, and then waiting thirty days before that advancement could take
effect. However, effective implementation of the remedy depends on
acting as soon as practicable to advance the current August 1, 2015
effective date for the 2015 rates. The effectiveness of the remedy is
reduced by each day that advancement of the effective date is delayed,
thereby leaving the 2014 rates invalidated by the court in place and
reducing the additional compensation that the pilots receive from
advancement. Delay in order to follow standard APA notice-and-comment
rulemaking procedures is therefore impracticable, because any delay
would largely, if not wholly, defeat the remedy's purpose.\15\
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\15\ Good cause is ``. . . appropriately invoked when the timing
and disclosure requirements of the usual procedures would defeat the
purpose of the proposal.'' Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95
(D.C. Cir. 2012). A good cause ``impracticability'' finding may be
upheld where quick action is needed to fulfill the goal of a court-
ordered deadline. Asiana Airlines, 134 F.3d 393, 398 (D.C. Cir.
1998).
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Delaying the implementation of this rule to follow standard APA
notice-and-comment rulemaking procedures is also contrary to public
interest. The Coast Guard is statutorily required to set Great Lakes
pilotage rates ``giving consideration to the public interest and the
costs of providing services.'' \16\ The Coast Guard's goal in setting
pilotage rates is to serve the public interest in assuring ``safe,
efficient, and reliable'' pilotage service on the Great Lakes.\17\ The
court has accepted the pilot associations' argument that the 2014 rates
inadequately compensate them for the cost of providing service.
Inadequate compensation reduces the funds that the plaintiff pilot
associations need to provide safe, efficient, and reliable pilotage,
because it weakens their ability to operate, attract and retain
qualified pilots, and maintain pilot boats and other infrastructure,
all of which are essential to providing current and future pilotage
services. The intended effect of the remedy of advancing the effective
date of the 2015 rates is to mitigate the impact of the inadequate
compensation provided by the invalidated 2014 rates. Therefore any
delay in implementing the remedy, diminishes the Coast Guard's ability
to mitigate the inadequate compensation of the 2014 rates and would
harm the public interest in assuring safe, efficient, and reliable
pilotage.\18\
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\16\ 46 U.S.C. 9303(f).
\17\ See 80 FR 10365 (Feb. 26, 2015).
\18\ See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir.
2012); Asiana Airlines, 134 F.3d 393, 398 (D.C. Cir. 1998).
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VI. Regulatory Analyses
We developed this rule after considering numerous statutes and
E.O.s related to rulemaking. Below we summarize our analyses based on
these statutes or E.O.s.
A. Regulatory Planning and Review
Executive Orders 12866, Regulatory Planning and Review, and 13563,
Improving Regulation and Regulatory Review, direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This rule is not a significant regulatory action under section 3(f)
of E.O. 12866 as supplemented by E.O. 13563. The Office of Management
and Budget (OMB) has not reviewed it under E.O. 12866.
Below is our analysis of the costs and benefits of the rule; this
analysis assists in ascertaining the probable impacts of this rule on
industry. The Coast Guard is advancing the effective date for the
February 26, 2015 final rule adjusting rates for pilotage services on
the Great Lakes in accordance with a full ratemaking procedure. The
rate adjustments made by the February 2015 final rule are unchanged,
but instead of taking effect on August 1, 2015, the rates will take
effect June 2, 2015. We estimate that shippers will experience an
increase in payments of approximately $283,761 across all three
districts as a result of this rulemaking.
A regulatory assessment follows.
The Coast Guard is advancing the effective date of the final rule
published on February 26, 2015, which established new base 2015
pilotage rates. This action leads to an increase in the cost per unit
of service to shippers in all three districts for the additional period
that the 2015 rates will be in effect. The calculations of the rates in
the 2014 ratemaking \19\ and the 2015 ratemaking \20\ remain unchanged.
The shippers affected by these rate adjustments are those owners and
operators of domestic vessels operating on register (employed in
foreign trade) and owners and operators of foreign vessels on a route
within the Great Lakes system. These owners and operators must have
pilots or pilotage service as required by 46 U.S.C. 9302. There is no
minimum tonnage limit or exemption for these vessels. The statute
applies only to commercial vessels and not to recreational vessels.
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\19\ 79 FR 12084 (Mar. 4, 2014).
\20\ 80 FR 10365 (Feb. 26, 2015).
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Owners and operators of other vessels that are not affected by this
final rule, such as recreational boats and vessels operating only
within the Great Lakes system, may elect to purchase pilotage services.
However, this election is voluntary and does not affect our calculation
of the rate and is not a part of our estimated national cost to
shippers.
[[Page 29977]]
We used 2011-2013 vessel arrival data from the Coast Guard's Marine
Information for Safety and Law Enforcement (MISLE) system to estimate
the average annual number of vessels affected by the rate adjustment.
Using that period, we found that approximately 114 different vessels
journeyed into the Great Lakes system annually. These vessels entered
the Great Lakes by transiting at least one of the three pilotage
districts before leaving the Great Lakes system. These vessels often
made more than one distinct stop, docking, loading, and unloading at
facilities in Great Lakes ports. Of the total trips for the 114
vessels, there were approximately 353 annual U.S. port arrivals before
the vessels left the Great Lakes system, based on 2011-2013 vessel data
from MISLE.
We estimate the additional impact (cost increases) of the rate
adjustment in this rule to be the difference between the 2014 and 2015
pilotage rates, multiplied by the additional bridge hours resulting
from advancing the 2015 rate effective date. For this analysis, we
assumed the earliest practicable effective date the 2015 rates could be
advanced to is June 1, 2015. This would add an additional two months of
bridge hours from the August 1, 2015 effective date set in the February
26, 2015 final rule. Table 1 details the additional cost increases by
area and district as a result of this rulemaking.
Table 1--Impact of the Rule by Area and District ($U.S.; Non-discounted)
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Additional
2014 Pilotage 2015 Pilotage 2014 Total Difference in bridge hours
Area rate \21\ rate \22\ bridge hours 2014 and 2015 (June and July Total cost
\23\ rates 2015) \24\
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Area 1.................................................. $472.50 $519.74 5,116 $47.24 1,137 $53,707
Area 2.................................................. 291.96 321.15 5,429 29.19 1,206 35,216
Total, District One..................................... .............. .............. .............. .............. .............. 88,923
Area 4.................................................. 210.40 231.44 5,814 21.04 1,292 27,184
Area 5.................................................. 521.64 573.80 5,052 52.16 1,123 58,558
Total, District Two..................................... .............. .............. .............. .............. .............. 85,742
Area 6.................................................. 204.95 225.45 9,611 20.50 2,136 43,783
Area 7.................................................. 495.01 544.52 3,023 49.51 672 33,260
Area 8.................................................. 191.34 210.47 7,540 19.13 1,676 32,053
Total, District Three................................... .............. .............. .............. .............. .............. 109,097
System Total............................................ .............. .............. .............. .............. .............. 283,761
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* Some values may not total due to rounding.
We estimate that shippers will experience an increase in payments
of approximately $283,761 across all three districts as a result of
this rulemaking. The resulting increase in costs is the change in
payments from shippers to pilots from advancing the effective date of
the 2015 rates. This figure is equivalent to the total additional
payments that shippers would incur for pilotage services. This figure,
however, is dependent on a June 1, 2015 effective date for this
rulemaking. Any delays in the effective date will result in a lower
cost impact to the shippers.
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\21\ 2014 rates are from 2014 final rule, ``Great Lakes Pilotage
Rates--2014 Annual Review and Adjustment'', 79 FR 12084 (Mar. 4,
2014).
\22\ 2015 rates are from 2015 final rule, ``Great Lakes Pilotage
Rates--2015 Annual Review and Adjustment'', 80 FR 10365 (Feb. 26,
2015).
\23\ Bridge hours are from 2015 final rule, ``Great Lakes
Pilotage Rates--2015 Annual Review and Adjustment'', 80 FR 10365
(Feb. 26, 2015).
\24\ Bridge hours were calculated by dividing the 2014 bridge
hours by the number of months in the shipping season (nine), and the
multiplying by two months.
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To calculate an exact cost per vessel is difficult because of the
variation in vessel types, routes, port arrivals, commodity carriage,
time of season, conditions during navigation, and preferences for the
extent of pilotage services on designated and undesignated portions of
the Great Lakes system. Some owners and operators would pay more and
some would pay less, depending on the distance and the number of port
arrivals of their vessels' trips.
This rulemaking provides the pilots with additional compensation
that will partially offset revenue losses due to the lower 2014 rates,
during the months when those rates would otherwise remain in effect.
This rulemaking helps assure safe, efficient, and reliable pilotage by
increasing the pilot compensation that is artificially low due to the
the 2014 rates invalidated by the court.
B. Small Entities
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), rules that are exempt from APA notice and comment requirements
are also exempt from the Regulatory Flexibility Act requirements when
the agency for good cause finds that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest. As discussed previously, Coast Guard for good cause finds
that notice and comment are impracticable and contrary to public
interest. Consequently, no regulatory flexibility analysisis is
required.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
D. Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. This rule does
not change the burden in the collection currently approved by the OMB
under Control
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Number 1625-0086, Great Lakes Pilotage Methodology.
E. Federalism
A rule has implications for federalism under E.O. 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in E.O. 13132. Our
analysis is explained below. Congress directed the Coast Guard to
establish ``rates and charges for pilotage services.'' 46 U.S.C.
9303(f). This regulation is issued pursuant to that statute and is
preemptive of state law as specified in 46 U.S.C. 9306. Under 46 U.S.C.
9306, a ``State or political subdivision of a State may not regulate or
impose any requirement on pilotage on the Great Lakes.''
As a result, States or local governments are expressly prohibited
from regulating within this category. Therefore, this rule is
consistent with the principles of federalism and preemption
requirements in E.O. 13132.
Dated: May 20, 2015.
Gary C. Rasicot,
Director, Marine Transportation Systems, U.S. Coast Guard.
[FR Doc. 2015-12734 Filed 5-22-15; 8:45 am]
BILLING CODE 9110-04-P
