of such pool and with other rules of the pool that are related to such facilities and services. (b) The voluntary associations of U.S. Registered Pilots authorized to establish a pilotage pool may require a U.S. Registered Pilot to execute a written authorization for the pool to bill for services, deduct authorized expenses, and to comply with the working rules and other rules of the pool relating to such facilities and services. Facilities and services of the pool may be denied to any U.S. Registered Pilot who fails or refuses to execute such authorizations. (c) U.S. Registered Pilots who fail to execute such an authorization shall not be considered members of the U.S. pool, and shall not be entitled to reciprocal dispatching and related services by United States and Canadian pilotage pools as provided for by the Memorandum of Arrangements. A U.S. Registered Pilot who fails or refuses to avail himself of the established facilities and services shall be considered as not being continuously available for service pursuant to section 4(a) of the Great Lakes Pilotage Act of 1960 (46 U.S.C. 216-2161) and his agreement executed on the Application for Registration as a U.S. Registered Pilot, and may be subject to suspension or revocation proceedings as prescribed by § 401.250. [26 F.R. 9647, Oct. 12, 1961 and 31 F.R. 9066, July 1, 1966; 32 F.R. 14221, Oct. 13, 1967] Subpart D-Rates, Charges, and Con ditions for Pilotage Services § 401.400 Rates and charges on designated waters. (a) Except as provided under § 401.420 of this subpart the following rates and charges shall be payable for all services performed by United States or Canadian Registered Pilots in the following areas of the U.S. waters of the Great Lakes described in § 401.300, pursuant to the Memorandum of Arrangements, Great Lakes Pilotage. (1) District No. 1-Continued (iv) For pilotage commencing or terminating at any point above Snell Lock other than those named in items (1) to (iii), $2.42 per mile but with a minimum charge therefor of-- (v) For a movage in any harbor... (2) District No. 2. (1) Passage through the Welland Canal or any part thereof, $5.50 for each mile plus $16.50 for each lock transited but with a minimum charge therefor of--and a maximum therefor of.. (ii) Between Southeast Shoal or any point on Lake Erie west thereof and any point on the St. Clair River or the approaches thereto as far as the northerly limit of the District_. (iii) Between Southeast Shoal and any point on Lake Erie west thereof or on the Detroit River_ (iv) Between any point on Lake Erie west of Southeast Shoal and any point on the Detroit River (v) Between points on Lake Erie west of Southeast Shoal____ (vi) Between points on the Detroit River (vii) Between any point on the Detroit River and any point on the St. Clair River or its approaches as far as the northerly limit of the District___ (viii) Between points on the St. Clair River including the approaches thereto as far as the northerly limit of the District-(3) District No. 3. (1) Between the southerly limit of the District and the northerly limit of the District or the Algoma Steel Corp. Wharf at Sault Ste. Marie, Ontario______ (ii) Between the southerly limit of the District and Sault Ste. Marie, Mich., or any point in Sault Ste. Marie, Ontario, other than the Algoma Steel Corp. Wharf (iii) Between the northerly limit of the District and Sault Ste. Marie, Ontario, including the Algoma Steel Corp. Wharf, or Sault Ste. Marie, Mich__ (iv) For a movage in any harbor___ Charges 55.00 55.00 55.00 220.00 165.00 104.50 104.50 55.00 55.00 104.50 82.50 220.00 181.50 82.50 55.00 (b) When the passage of a ship through a District is interrupted for the purpose of loading or discharging cargo or for any other reason and the services of the Registered Pilot are retained during such interruption, for the conven ience of the ship, the ship shall be required to pay an additional charge of $5.50 for each hour or part of an hour during which each interruption lasts, but with a maximum of $82.50 for each 24hour period of such interruption. However, no charge shall be payable for any interruption caused by ice, weather, or traffic except during the period from the 1st day of December to the 8th day of April next following. [32 F.R. 14104, Oct. 11, 1967; 32 F.R. 14895, Oct. 27, 1967] § 401.410 Rates and charges on undesignated waters. (a) Except as provided under § 401.420 and subject to paragraph (b) of this section, the charges to be paid by a ship that has a Registered Pilot on board in the undesignated waters shall be $55 for each 24-hour period or part thereof that the pilot is on board, plus (1) $27.50 for each time the pilot performs the docking or undocking of the ship on entering or leaving the harbor or performs a movage of the ship within a harbor, and (2) the travel expenses reasonably incurred by a pilot in joining the ship and returning to his base. (b) When a Registered Pilot is carried on a ship in a direct transit of the undesignated waters of Lake Erie between Southeast Shoal and Port Colborne, the charges referred to in paragraph (a) of this section are not payable unless, (1) the ship is required by law to have a Registered Pilot on board in those waters, or (2) services are performed by the pilot in those waters at the request of the master. [32 F.R. 14105, Oct. 11, 1967] (a) When in designated or undesignated waters the departure or the movage of a ship for which a Registered Pilot has been ordered is delayed for the convenience of the ship for more than 1 hour after the pilot reports for duty or after the time for which he is ordered, whichever is the later, or when a pilot is detained on board a ship for the convenience of the ship for more than 1 hour 'after the end of the assignment for which he was ordered, there shall be payable an additional charge of $5.50 per hour after the first hour of such delay; but the aggregate amount of such further charges shall not exceed $82.50 for any 24-hour period. 86-102-68- -33 (b) When in designated or undesignated waters a Registered Pilot reports for duty as ordered and the order is canceled, the charges to be paid by the ship shall be (1) a cancellation charge of $27.50, (2) if the cancellation is more than 1 hour after the pilot was ordered for, a further charge of $5.50 for every hour or part of an hour after the first hour, except that the aggregate cancellation charge payable in any 24-hour period shall not exceed $82.50, and (3) if the ship is in the undesignated waters, the travel expenses reasonably incurred by the pilot in joining the ship and returning to his base. [32 FR. 14105, Oct. 11, 1967] § 401.430 Prohibited charges. No rate or charge shall be applied against any vessel, owner or master thereof, by a registered pilot which differs from the rates and charges set forth in this part, nor shall any rates or charges be made for services performed by a registered pilot other than those for which a rate is prescribed in this part, without the approval of the Director. [26 F.R. 953, Jan. 31, 1961, as amended at 32 F.R. 14221, Oct. 13, 1967] § 401.431 Disputed charges. (a) Any rate or charge applied against any vessel, owner, or master thereof by a registered pilot which the owner or master disputes as a charge prohibited by § 401.430, may be appealed to the Director for an advisory opinion as to whether such rate or charge is a prohibited charge. (b) The appeal shall be in writing and set forth the amounts and description of the rates and charges disputed. The appeal must be supported by evidence that a reasonable attempt has been made to resolve the matter between the parties and that a bona fide controversy exists. (c) The respondent shall be furnished a copy of the appeal and be notified by the appellant that the matter has been appealed for an advisory opinion. (d) The respondent shall be allowed a reasonable time, not less than twenty (20) days, in which to file with the Director and the appellant any data or arguments desired to be submitted in further defense of the disputed rates and charges. (e) The Administration shall consider all relevant matter presented and issue an advisory opinion which shall be accompanied by an express recital that all relevant material received has been considered. The advisory opinion shall set forth the rates and charges in dispute, a discussion of the facts and relevant material considered, and a statement of opinion. (f) When it is found that the disputed rates and charges, in the opinion of the Director, are charges prohibited by § 401.430, the respondent shall have a reasonable time, but not more than thirty (30) days in which to refund moneys, adjust invoices, and otherwise conform to the advisory opinion. (g) Failure or refusal to comply with the advisory opinion within the time allowed may form a basis for a determination that there is a violation of the Great Lakes Pilotage Regulations subject to the provisions of § 401.500. [29 F.R. 10467, July 28, 1964, as amended at 32 F.R. 14221, Oct. 13, 1967] § 401.440 Advance payment of charges. Subject to the approval of the Director, a United States or Canadian Registered Pilot performing pilotage services in accordance with the rates and charges set forth in this subpart may require advance payment of such rates or charges or a suitable bond securing payment. [29 F.R. 10467, July 28, 1964, as amended at 32 F.R. 14221, Oct. 13, 1967] Subpart E-Penalties; Operations § 401.500 Penalties for violations. Any person who violates any provision of this part shall be liable to the United States in a civil penalty not exceeding $500 for each violation. Such penalty may be remitted or mitigated, upon application therefor, by the Commandant upon such terms as he, in his discretion, shall think proper. [26 F.R. 953, Jan. 31, 1961, as amended at 32 F.R. 14221, Oct. 13, 1967] a United States or Canadian Registered Pilot is not available. (1) Notification to the master that a pilot is not available will be made by the Director through the appropriate pilotage pool, either orally or in writing as the circumstances admit, and shall not be deemed given until the notice is actually delivered to the vessel by the pilotage pool. (2) The determination that a pilot is not available will be made on an individual basis and only when a vessel has given proper notice of its pilotage service requirements to the pilotage pool having dispatching jurisdiction at the time. The vessel has no obligation or responsibility with respect to such notification other than properly informing the pilotage pool of its pilotage requirements. However, the failure or delay by the pool in processing a pilotage service request, or refusal or delay by the Coast Guard in notifying the vessel that a pilot is not available, does not constitute constructive notice that a pilot is not available, and the vessel is not relieved by such failure or delay from compliance with the Great Lakes Pilotage Act of 1960. (3) Upon receipt of proper notice of a vessel's pilotage requirements, the pilotage pool shall then determine from the tour de role the availability of a pilot to render the service required. If no pilot is reasonably expected to be available for service within 6 hours of the time the pilotage services are required by the vessel, the pilotage pool shall promptly inform the Director through the U.S. Coast Guard communications system in the manner as may be prescribed from time to time by the Commandant. The Director shall be informed of: (i) Name and flag of the vessel; (ii) Route of vessel for which a pilot is not available; (iii) Time elapsing before a pilot is reasonably expected to become available; (iv) Whether vessel has an "other officer" on board; (v) Familiarity of master with route to be transited by the vessel; (vi) Draft of vessel; and (vii) Any circumstances of traffic or weather, or condition of the vessel or its cargo which would adversely affect the safety of the vessel in transiting without a pilot. (4) When a pilot is expected to become available within 6 hours of the time his services are required, the vessel shall be informed that a pilot is available and the approximate time he will report on duty. However, should any unusual circumstance or condition exist which may justify notification that a pilot is not available in less than 6 hours, the pilotage pool shall inform the Director as in subparagraph (3) of this paragraph, along with the circumstances involved. Every reasonable effort is to be made to prevent delay to the vessel consistent with the intent and purpose of the Great Lakes Pilotage Act of 1960. (5) Any vessel which requires the services of a pilot and is navigated without a pilot or proceeds prior to receipt of a message that a pilot is not available pursuant to subparagraph (1) of this paragraph shall be reported as in violation of section 7 of the Great Lakes Pilotage Act of 1960 by the pilotage pool to the local Coast Guard unit having jurisdiction. If the message is received after the vessel proceeds, such message shall not be delivered without concurrence of the Coast Guard officer to whom the violation was reported. (6) U.S. pilotage pools informing the Director that a pilot is not available for a vessel shall also obtain notice that a pilot is not available from the appropriate Canadian Supervisor of Pilots for those portions of the route which are in Canadian waters in the manner prescribed by them. The notice for Canadian District No. 1 waters shall be obtained from the Supervisor of Pilots, Department of Transport, Cornwall, Ontario, and the notice for Canadian District No. 2 waters shall be obtained from the Supervisor of Pilots, Department of Transport, Port Weller, Ontario. Authority to issue notice for Canadian waters of District No. 3 has been granted to the Director by the Department of Transport, Ottawa, and separate notice from Canada for this District is not required until such time as separate Canadian pilotage dispatch facilities may be established. (7) Notice that a pilot is not available shall not be delivered to any vessel unless the message contains the concurrence of the Commander, 9th Coast Guard District, and notice for Canadian waters of Districts No. 1 and No. 2, if required, has been obtained from the appropriate Canadian authority. (8) In the event of an emergency or any other compelling circumstance, the Director may issue, without the specific request for service as provided under subparagraph (2) of this paragraph individ (a) A United States Registered Pilot, on receipt of notice from the U.S. Coast Guard that he has violated any regulation made pursuant to the Act, which violation the Director determines is grounds for suspension or revocation of the pilot's Certificate of Registration, shall have fifteen (15) days from the receipt of such notice in which to notify the Director that he elects to exercise his right to a hearing as to the grounds for the proposed suspension or revocation. A pilot failing to notify the Director within the prescribed period is deemed to have waived his right to a hearing. (b) A United States Registered Pilot whose application was timely filed, on receipt of notice that renewal of his Certificate of Registration, has been denied pursuant to § 401.240 (c), who fails to notify the Director within fifteen (15) days of the receipt of such notice that he desires a hearing is deemed to have waived his right to a hearing. [29 F.R. 11595, Aug. 13, 1964, as amended at 32 F.R. 14222, Oct. 13, 1967] § 401.605 Notice. (a) The U.S. Registered Pilot, designated "respondent" in a suspension or revocation hearing or "applicant" in a refusal-to-renew-registration hearing, may be represented before the Examiner by any person who is a member in good standing of the bar of the highest court of any State, Commonwealth, Territory, Possession, or the District of Columbia, upon filing with the Examiner a written declaration that he is currently qualified and is authorized to represent the particular party in whose behalf he acts. (b) Whenever a person acting in a representative capacity appears in person or signs a paper in practice before the Examiner, Director, the Commandant, or other official of the Coast Guard, his personal appearance or signature shall constitute a representation that under the provisions of this subpart and applicable law he is authorized and qualified to represent the particular person in whose behalf he acts. (c) When any Registered Pilot is represented by an attorney at law, any notice or other written communication required or permitted to be given to or by such a U.S. Registered Pilot shall be given to or by such attorney. If a U.S. Registered Pilot is represented by more than one attorney, service by or upon any one of such attorneys shall be sufficient. [32 F.R. 14222, Oct. 13, 1967] (a) In a suspension or revocation hearing, the Director shall have the burden of establishing, by substantial evidence, the grounds for a suspension or revocation of a Certificate of Registration held by a pilot, as stated in the letter addressed to such pilot notifying him of the Coast Guard's intention to suspend or revoke the pilot's registration. (b) In a refusal-to-renew-registration hearing, the Director shall have the burden of establishing the grounds for the Director's determination under § 401.240 (c) to deny renewal of the Certificate of Registration. [32 F.R. 14222, Oct. 13, 1967] § 401.630 Appearance, testimony, and cross-examination. (a) The U.S. Registered Pilot may appear in person or by counsel and may testify at the hearing, call witnesses in his own behalf, and cross-examine witnesses appearing in behalf of the Director. (1) In any case in which the U.S. Registered Pilot, after being duly served with the notice of the time and place of the hearing, fails to appear at the time and place specified for the hearing, a notation to that effect shall be made in the record and the hearing may then be conducted "in absentia." (2) The Examiner shall also cause to be placed in the record all the facts concerning the issuance and service of the notice of hearing and the allegations against the U.S. Registered Pilot. (b) The Director through counsel shall appear, present evidence, call witnesses, and cross-examine the witnesses called on behalf of the U.S. Registered Pilot. (c) In the discretion of the Examiner, other witnesses may testify at the hearing. [32 F.R. 14222, Oct. 13, 1967] § 401.635 Evidence which shall be excluded. The Examiner presiding at the hearing shall exclude irrelevant, immaterial, or unduly repetitious evidence. § 401.640 Record for decision. The transcript of testimony and oral argument at the hearing, together with any exhibits received, shall be made part of the record for decision, and the record shall be available to the respondent or applicant on payment of costs thereof. § 401.645 Examiner's decision; exceptions thereto. At the conclusion of the hearing, the parties may submit briefs and recommended conclusions and findings within such time as the Examiner shall determine appropriate. The Examiner shall thereafter issue a written initial decision in the case, which decision shall be final and binding upon the Director, except as provided in § 401.650. [29 F.R. 11595, Aug. 13, 1964, as amended at 32 F.R. 14222, Oct. 13, 1967] |