[Federal Register Volume 63, Number 207 (Tuesday, October 27, 1998)]
[Rules and Regulations]
[Pages 57252-57255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28755]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Part 15
[USCG-1998-3323; CGD 97-073]
RIN 2115-AF57
Federal Pilotage for Vessels in Foreign Trade
AGENCY: Coast Guard, DOT.
ACTION: Final Rule.
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SUMMARY: The Coast Guard is issuing a final rule requiring that vessels
in foreign trade, under way on the Cape Fear River and the Northeast
Cape Fear River in North Carolina, be under the direction and control
of Federal pilots when not under the direction and control of State
pilots. This measure is necessary to ensure that vessels are navigated
by competent, qualified persons, who are familiar with the local area
and accountable to either the State or the Coast Guard. This measure
will promote navigational safety by increasing the level of
accountability and reducing risk of both accident and
[[Page 57253]]
the discharge of oil or other hazardous substances into these waters.
DATES: The final rule is effective on November 27, 1998.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the Docket
Management Facility (DMF) [USCG-1998-3323], U.S. Department of
Transportation, Room PL-401, 400 Seventh Street SW., Washington, DC
20590-0001, located on the Plaza Level of the Nassif Building, between
10:00 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
The telephone number is 202-366-9329.
FOR FURTHER INFORMATION CONTACT: For questions on this rule, call Mr.
Anthony Murray, Licensing and Evaluation Branch, U. S. Coast Guard,
National Maritime Center (NMC-4C), 4200 Wilson Blvd., Suite 510,
Arlington, VA 22203-1804, telephone 703-235-1729. For questions on
viewing material in the docket, call Dorothy Walker, Chief, Documents,
Department of Transportation, telephone 202-366-9329.
SUPPLEMENTARY INFORMATION:
Regulatory History
On January 20, 1998, the Coast Guard published in the Federal
Register [63 FR 2939] a notice of proposed rulemaking (NPRM) entitled
``Federal Pilotage for Vessels in Foreign Trade''. This NPRM proposed
areas in waters of the Cape Fear River and the Northeast Cape Fear
River in North Carolina, where it would require a vessel engaged in
foreign trade to use a Federally-licensed, first-class pilot. The Coast
Guard received eight letters in response to the NPRM.
Background and Purpose
Under sub-section 8503(a) of title 46, United States Code, the
Secretary of Transportation may require a Federally-licensed pilot on a
self-propelled vessel engaged in foreign trade and operating on the
navigable waters of the United States, when State law does not require
a State pilot. Sub-section 8503(b) provides that Federal authority to
require Federally-licensed pilots on vessels in foreign trade
terminates when the State having jurisdiction establishes a superseding
requirement for a State pilot and notifies the Secretary of that fact.
Commercial vessels transit the Cape Fear River and Northeast Cape
Fear River carrying various types of freight, oil, hazardous
substances, and hazardous materials, as well as large quantities of
bunkers. Under the law of North Carolina [General Statutes of North
Carolina, 76A-16], every foreign vessel and every domestic vessel
sailing under register ``shall employ and take a State-licensed
pilot,'' except that the vessel need not use a State-licensed pilot if
a docking master is aboard and the vessel is assisted by a tug for
certain movements on the Cape Fear River. These movements include
berthing and unberthing, passing through bridges, and shifting within a
port or terminal. North Carolina neither licenses nor otherwise
regulates the competence of docking masters. Although all docking
masters currently operating upon the Cape Fear River and Northeast Cape
Fear River do hold valid Federal pilots' licenses (or pilotage
endorsements on Federal licenses), holding either is voluntary and is
neither a State nor a Federal requirement. Anyone may serve as docking
master, and no one need demonstrate additional proficiency as a
``docking master.'' The docking master of a vessel assisted by a tug
may be subject to Federal accountability in that the Coast Guard may
proceed against his or her license as operator of an uninspected towing
vessel.
As recently as 1994, a foreign-flag bulk carrier under the control
of a docking master was caught by the wind and current when leaving a
pier above the Cape Fear Memorial Bridge. The vessel was set downriver,
perpendicular to the channel, while the docking master tried to rotate
its bow downstream. Its stern struck and destroyed about 30 meters of
the pier that it had just left. The docking master was not operating
under the authority of either a Federal or a State pilot's license.
North Carolina did not investigate this incident; and, in such a case,
unless the person is operating under the authority of a Federal license
(or pilotage endorsement), or the Coast Guard has some other basis for
jurisdiction, the Coast Guard cannot suspend or revoke his or her
Federal license (or endorsement) for violation of statute or rule
intended either to promote marine safety or to protect the navigable
waters, or for misconduct or for negligence [46 U.S.C. Chapter 77].
Even if the Coast Guard considered him or her professionally or
medically incompetent, its ability to deny him or her the opportunity
to serve as a docking master on foreign-trade vessels would be severely
restricted.
The Coast Guard has determined that it is unsafe for vessels to
undertake intra-port transits or otherwise navigate in the waters of
the Cape Fear River or Northeast Cape Fear River except when under the
direction and control of pilots accountable to either North Carolina or
the Coast Guard. It also has determined that requiring persons to serve
under the authority of Federal first-class pilots' licenses (or
pilotage endorsements), if not of State licenses, and so to be
accountable for their acts and competence, would increase maritime
safety.
To obtain a Federal pilot's license (or pilotage endorsement), a
person must pass a comprehensive examination, which includes
demonstrating mastery of, among others, such subjects as maneuvering
and handling ships; navigational aids; winds, tides, and currents; and
a chart sketch. Further, a person must complete a specific number of
round trips and demonstrate specialized local knowledge of the waters
for which the license (or endorsement) authorizes service as a pilot.
Therefore, the Coast Guard instates a Federal pilots' requirement for
foreign-trade vessels operating in the designated waters of the Cape
Fear River and Northeast Cape Fear River, unless the vessels are under
the direction and control of State-licensed pilots operating under the
authority of valid State pilots' licenses.
This final rule adds a new section to 46 CFR part 15, subpart I,
requiring that every foreign-trade vessel operating on the Cape Fear
River and Northeast Cape Fear River be under the direction and control
of a Federally-licensed pilot, unless under the direction and control
of a State-licensed pilot. This rule applies only to the specified
areas of the Cape Fear River and the Northeast Cape Fear River, because
North Carolina allows docking masters to take control of foreign-trade
vessels only in these waters.
Discussion of Comments and Changes
Summary
On January 20, 1998, the Coast Guard published in the Federal
Register [63 FR 2939] an NPRM entitled ``Federal Pilotage Requirement
for Foreign Trade Vessels.'' It asked that comments reach the Docket
Management Facility on or before February 19, 1998. Eight arrived in
response to the NPRM.
Two comments expressed support for the proposed rule to require
Federal pilots onboard vessels on the Cape Fear River and the Northeast
Cape Fear River where North Carolina does not require a pilot.
One comment suggested that the comment period as announced in the
NPRM be extended, to afford officials of North Carolina and affected
persons in the area covered by this rule enough time to assess the
impact of the rule and develop further comments. In addition,
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this comment recommended an interim rule until North Carolina could
close the gap caused by the present exemption from its requirement of
compulsory pilotage. The Coast Guard has determined that the comment
period provided was appropriate in duration and that an interim rule
would serve no purpose, because even a final rule leaves North Carolina
free to preempt it by the State's own legislative act.
This comment went on to suggest that the rule should affect three
specific zones. But the three zones suggested by the commenter would
not encompass the development of new terminals along the river located
within the resulting gaps among the three zones. The two zones set out
in this final rule comprise an area larger than these three, and the
area described in paragraph (a) of the rule now extends about one mile
further than that in the proposed rule. By covering these areas, the
rule will close any present or future gaps in the areas not covered by
the State.
Four comments asserted that the proposed rule would create a
conflict between State and Federal pilotage requirements and
recommended alternative wording to the rule. They held that, unless
changed from the proposed rule, the final rule could be misinterpreted
to mean that Federal pilotage is all that would be necessary for
someone operating a vessel on covered waters. The Coast Guard agrees
and amends subsection (b) for clarification. The Coast Guard leaves the
opportunity to North Carolina to adopt superseding legislation and
preempt Federal authority.
One comment observed that the NPRM identifies all docking masters
currently operating on the Cape Fear River and Northeast Cape Fear
River as already holding valid Federal pilots' licenses (or pilotage
endorsements). It went on to suggest that docking masters are therefore
already accountable by virtue of holding Federal pilots' license or
endorsements to Federally-issued licenses for Operators of Uninspected
Towing Vessels. The NPRM, however, stresses ``that holding [these
licenses or endorsements] is voluntary and is neither a State nor a
Federal requirement.'' The Coast Guard deems this final rule necessary
as long as North Carolina permits a docking master, not licensed by the
State, to serve as pilot on certain waters of the State.
One comment voiced concern that this regulatory initiative was the
result of a single incident where accountability could not be
established. The incident described in the preamble to the NPRM was
illustrative of a longstanding concern of the Coast Guard of a
dangerous situation that could quickly develop if the status quo that
all current docking masters have Federal pilots' licenses, were to
change. The Coast Guard is acting now to prevent such a situation.
This comment also implied that accountability does not guarantee
competency and suggested that the Coast Guard review qualifications for
maintaining a Federal pilot's license. By Federal regulation [46 CFR
10.709 and 10.713], the Coast Guard requires every person holding a
license or endorsement as first-class pilot to maintain current
knowledge of the waters he or she would navigate as well as to have a
thorough physical examination each year. In addition, the comment
recommended that the State organizations responsible for issuance of
State pilots' licenses assure minimum levels of competence regardless
of transit area. Although the Coast Guard holds an interest in the
competence of licensed State pilots, the standards are for the State to
set.
One comment suggested adding the words in paragraph (a), ``with tug
assistance''; otherwise, the final rule would allow Federally-licensed
pilots to maneuver vessels without such assistance on the Cape Fear
River and the Northeast Cape Fear River. Yet North Carolina allows
State-licensed pilots to maneuver vessels without tug assistance on
those waters; it requires docking masters alone to employ such
assistance. The Coast Guard considered this request, and determined
that a requirement for ``tug assistance'' would go beyond the scope of
this rulemaking. The Coast Guard will defer to North Carolina if the
State requires tug assistance, but will not require it itself.
Regulatory Evaluation
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. It has not been reviewed by the Office of Management and
Budget under that Order. It is not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) [44
FR 11040 (February 26, 1979)].
The Coast Guard expects the economic impact of this final rule to
be so minimal that a full Regulatory Evaluation under paragraph 10(e)
of the regulatory policies and procedures of DOT is unnecessary.
Foreign-trade vessels are normally under the direction and control
of docking masters or State pilots when making intra-port transits or
transits in congested waters. Those persons currently serving as
docking masters do hold Federal pilots' licenses, although not required
to do so by State or Federal law. Therefore, this final rule will not
impose any added costs on the persons now acting as docking masters.
However, those persons entering this profession in the future will now
have to hold Federal pilots' licenses. Historically, persons filling
these vacancies have already obtained Federal pilots' licenses and
necessary endorsements in the normal course of advancement in this
profession. Nevertheless, this rule will require an initial expense to
obtain the license, in addition to a yearly physical exam and the five-
year renewal fees. These costs should be insignificant as those persons
now acting as docking masters do already have, and those likely to
enter this profession will already have, the required license. This
rule will promote responsibility, advocate safety, and establish
accountability by requiring a Federal pilot, where the State requires
no pilot, for foreign-trade vessels transiting or making intra-port
transits within the waters of the Cape Fear River or Northeast Cape
Fear River. The Coast Guard believes that the benefits of requiring
licensed, qualified persons aboard these vessels significantly outweigh
the small costs associated with implementing this rule.
Small Entities
Under the Regulatory Flexibility Act [5 U.S.C. 601-612], the Coast
Guard considered whether this final rule would have a significant
economic impact on a substantial number of small entities. These
include independently owned and operated small businesses that are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
The Coast Guard expects that this final rule will have minimal
economic impact on small entities. The Coast Guard doubts whether
vessels affected by this rule are owned or operated by small entities.
While State pilots' associations may qualify as small entities, the
Coast Guard's action will not have a significant economic impact on
these entities. Therefore, the Coast Guard certifies under 5 U.S.C.
605(b) of the Regulatory Flexibility Act [5 U.S.C. 601 et seq.] that
this rule will not have a significant economic impact on a substantial
number of small entities.
Assistance for Small Entities
In accordance with sub-section 213(a) of the Small Business
Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the
Coast Guard wants to help small entities understand this final
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rule so they can better evaluate its effects on them and participate in
the rulemaking. If your small business is affected by this rule and you
have questions concerning its provisions or options for compliance,
please call Mr. Anthony Murray, Licensing and Evaluation Branch, U.S.
Coast Guard, National Maritime Center, 703-235-1729.
The Small Business and Agriculture Regulatory Enforcement Ombudsman
and 10 Regional Fairness Boards were established to receive comments
from small businesses about Federal agency enforcement actions. The
Ombudsman will annually evaluate the enforcement activities and rate
each agency's responsiveness to small business. If you wish to comment
on the enforcement actions of the Coast Guard, call 1-888-REG-FAIR (1-
888-7734-3247).
Collection of Information
This final rule contains no collection-of-information requirements
under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].
Federalism
The Coast Guard has analyzed this final rule under the principles
and criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient implications for federalism to
warrant the preparation of a Federalism Assessment.
Congress specifically, under 46 U.S.C. 8503(a), authorized the
Federal Government to require a Federally-licensed pilot where State
law requires no pilot. North Carolina permits a docking master, not
licensed by the State, to serve as pilot on certain waters of the
State. Therefore, the Federal Government may require Federally-licensed
pilots on those waters. The Federal authority to require that pilots
hold Federal licenses is effective only until the State establishes a
superseding requirement that pilots hold State licenses and notifies
the Coast Guard of that fact according to 46 U.S.C. 8503(b).
Since this final rule aims primarily at requiring Federal pilots to
supplement State pilots, the Coast Guard does not believe that the
preparation of a Federalism Assessment is warranted. This rule will not
impinge upon existing State laws. If North Carolina adopts superseding
legislation requiring foreign vessels, and domestic vessels sailing on
registry, to be under the direction and control of State-licensed
pilots and notifies the Secretary of Transportation of that
requirement, this rule will lose all its force. Thus, in step with the
Federal statute, this rule itself lets the State preempt Federal
authority.
Environment
The Coast Guard considered the environmental impact of this final
rule and concluded that, under figure 2-1, paragraph (34)(a) of
Commandant Instruction Ml6475.1C, this rule is categorically excluded
from further environmental documentation. A Categorical Exclusion
Determination is available in the docket for inspection or copying
where indicated under ADDRESSES.
The Coast Guard has determined that most people now providing
pilotage to foreign-trade vessels calling within the Cape Fear River
and Northeast Cape Fear River will continue to provide it because most
already hold Federal first-class pilots' licenses for those waters.
Therefore, this rule will let affected vessels continue to operate
according to current practices in the industry.
The Coast Guard also recognizes that this rule may have a positive
effect on the environment by minimizing the risk of environmental harm
resulting from collisions, allisions and grounding of vessels.
Nevertheless, this impact is not significant enough to warrant further
documentation.
List of Subjects in 46 CFR Part 15
Crewmembers, Marine safety, Navigation (water), Seamen, Vessels.
For the reasons discussed in the preamble, the Coast Guard amends
46 CFR part 15 as follows:
PART 15--MANNING REQUIREMENTS
1. The authority citation for part 15 continues to read as follows:
Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104,
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904,
8905(b), 9102; 49 CFR 1.45 and 1.46.
2. Add Sec. 15.1050 to read as follows:
Sec. 15.1050 North Carolina.
(a) The following navigable waters of the United States within the
State of North Carolina when the vessel is maneuvering while berthing
or unberthing, is approaching or passing through a bridge, or is making
any intra-port transit, which transit may include but is not limited to
movement from a dock to a dock, from a dock to an anchorage, from an
anchorage to a dock, or from an anchorage to an anchorage, within
either of the following areas:
(1) The waters of the Cape Fear River from the boundary line
established by 46 CFR 7.60 to Latitude 34 deg. 16.5'N.
(2) The waters of the Northeast Cape Fear River from its confluence
with the Cape Fear River at Point Peter to Latitude 34 deg.17'N.
(b) This subpart does not apply to any vessel on the waters
specified in paragraph (a) of this section if the laws of the State of
North Carolina require a State-licensed pilot on the vessel.
Dated: October 13, 1998.
R.C. North,
Rear Admiral, U.S. Coast Guard,
Assistant Commandant for Marine
Safety and Environmental Protection.
[FR Doc. 98-28755 Filed 10-26-98; 8:45 am]
BILLING CODE 4910-15-P
