[Federal Register Volume 59, Number 68 (Friday, April 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8375]
[[Page Unknown]]
[Federal Register: April 8, 1994]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 26 and 162
[CGD 93-072]
RIN 2115-AE66
Vessel Bridge-to-Bridge Radiotelephone Regulations: Inland
Waterways Navigation Regulations
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to amend the Vessel Bridge-to-Bridge
Radiotelephone Regulations to correct an inconsistency between the
statutory and regulatory language; and to amend the Inland Waterways
Navigation Regulations to remove regulatory language that contradicts
the Inland Navigation Rules.
DATES: Comments must be received on or before June 7, 1994.
ADDRESSES: Comments may be mailed to the Executive Secretary, Marine
Safety Council (G-LRA/3406) (CGD 93-072), U.S. Coast Guard
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may
be delivered to Room 3406 at the above address between 8 a.m. and 3
p.m., Monday through Friday, except Federal holidays. The telephone
number is (202) 267-1477 for information concerning the submission of
comments.
The Executive Secretary maintains the public docket for this
rulemaking. Comments will become part of this docket and will be
available for inspection or copying at room 3406, U.S. Coast Guard
Headquarters.
FOR FURTHER INFORMATION CONTACT:Mr. Jonathan Epstein, Navigation Rules
and Information Branch, Office of Navigation Safety and Waterway
Services, (202) 267-0352 or (202) 267-0357.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their name and address,
identify this rulemaking (CGD 93-072) and the specific section of this
proposal to which each comment applies, and give a reason for each
comment. The Coast Guard requests that all comments and attachments be
submitted in an unbound format suitable for copying and electronic
filing. If not practical, a second copy of any bound materials is
requested. Persons wanting acknowledgment of receipt of comments should
enclose a stamped, self-addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to the Marine Safety Council at the address
under ADDRESSES. The request should include reasons why a hearing would
be beneficial.
If it is determined that the opportunity for oral presentations
will aid this rulemaking, the Coast Guard will hold a public hearing at
a time and place announced by a later notice in the Federal Register.
Drafting Information
The principal persons involved in drafting this document are
Jonathan Epstein, Project Manager, Office of Navigation Safety and
Waterway Services, and LT Ralph L. Hetzel, Project Counsel, Office of
Chief Counsel.
Background and Purposes
This proposed rulemaking will correct two conflicts between
statutory law and existing navigation safety regulations. Although both
corrections directly affect navigation safety, the two subject matters
are distinct. Therefore, this proposal will address the proposed
changes to the Vessel Bridge-to-Bridge Radiotelephone Regulations (33
CFR 26) in section one and the proposed changes to the Inland Waterways
Navigation Regulations (33 CFR 162) in section two.
1. Vessel Bridge-to-Bridge Radiotelephone Regulations
The Vessel Bridge-to-Bridge Radiotelephone Regulations,
specifically 33 CFR 26.05, differs in wording and meaning from the
corresponding statutory authority, the Vessel Bridge-to-Bridge
Radiotelephone Act, 1972, (33 U.S.C. 1204). The particular statutory
language is important because it determines who may maintain the watch
on the designated bridge-to-bridge calling channel (VHF-FM Channel 13
in U.S. territorial waters, except in the approaches to the lower
Mississippi River where VHF-FM Channel 67 is the designated channel).
Section 26.05 provides that, ``The radiotelephone required by this act
is for the exclusive use of the master or person in charge of the
vessel, or the person designated by the master or person in charge of
the vessel [emphasis added], or the person designated by the master or
person in charge to pilot or direct the movement of the vessel, who
shall maintain a listening watch on the designated frequency.'' This
highlighted clause does not appear in the statutory language, but was
added in the regulatory language. This additional clause implies that
any person designated by the master or licensed officer may maintain
the watch on the designated channel. This differs from the statutory
construction which requries the master or person piloting the vessel to
maintain the radio listening watch and communicate with other vessels
on the prescribed channel.
This discrepancy dates back to the enactment of the Vessel Bridge-
to-Bridge Radiotelephone Act in 1972. The implementing final rule, (37
FR 12719, June 28, 1972) contained the additional phrase without
explanation even though it is directly contrary to the intent of
Congress. The history of the Vessel Bridge-to-Bridge Act (Pub. L. 92-
63) addresses this, pointing out that the radiotelephone equipment
should be operated by the master, mate, or person in charge of the
vessel in the wheelhouse. It specifically notes that if another person
were added to the crew to monitor the radio, that would defeat the
purpose of the legislation.
Discussion
The Coast Guard proposes to remove the additional language in
Sec. 26.05 to make the language and meaning of the regulation
consistent with the Vessel Bridge-to-Bridge Radiotelephone Act.
The history and purpose of the Vessel Bridge-to-Bridge
Radiotelephone Act show that the intent was to provide one radio
frequency where the person ``conning'' a vessel could communicate
directly with the person ``conning'' an approaching vessel about
proposed maneuvers to avoid collision. The current regulation implies
that the ``watch'' on the designated frequency can be maintained by
some other person that the officer or pilot controlling the movement of
the vessel. The danger of having a person other than the person or
persons charged with maneuvering the ship maintain the watch was
illustrated in a recent near collision:
A small ship (vessel A) and a large tanker (tanker B) were both
approaching the channel north of Alcatraz Island in San Francisco Bay
from near opposite directions and both headed for sea. The vessels had
agreed via bridge-to-bridge radio that vessel A would take the lead
into the channel, however vessel A was forced to slow to avoid a
crossing ferry. Due to this delay, the tanker B's pilot proposed that
this vessel take the lead into the channel. An officer on the bridge of
vessel A assigned as ``radio watch'', assented to this new passage
arrangement. However, this modification of the agreement was never
passed to vessel A's captain or conning officer, who increased speed to
attempt to pass ahead of tanker B. The result was a near collision
averted only by radical maneuver by vessel A. Either vessel A's captain
or conning officer should have been monitoring VHF-FM Channel 13. If
temporarily on the bridge wing, communications directed to the vessel
should have been relayed by the ``radio watch''.
Since removal of this language serves only to bring the regulatory
language in Sec. 26.05 into conformity with the statutory language,
there will be no change in the meaning or effect of the statutory
language. The impact on the mariner should be negligible because the
publication ``Navigation Rules: International-Inland,'' which includes
the text of the Vessel Bridge-to-Bridge Radiotelephone Regulations,
contains the statutory rather than the regulatory language. In
addition, the Federal Communications Commission regulations originally
mirrored the statutory language and continue to do so in 47 CFR 80.309.
The following further clarifies the Coast Guard's interpretation of
the bridge-to-bridge radiotelephone watch requirements. The Vessel
Bridge-to-Bridge Radiotelephone Act is clear that the master or person
piloting the vessel is required to maintain the listening watch and to
make all communications on the designated channel. This means that the
person in charge of the vessel, regardless of designation as commanding
officer, master, or person in charge; and in addition, the person(s)
conning the vessel, whether an embarked pilot, licensed mate, or the
deck watch officer who is ``conning'' the vessel or responsible for the
ship's movement should conduct all passing arrangements on the
prescribed channel. The practice of using another person to ``relay''
messages should be discouraged as it is inconsistent with the intent of
the statute. However, if circumstances required, the use of a person
solely to relay or amplify radio communications would not be a
violation per se.
It is also incumbent on the master or person piloting the vessel to
maintain a listening watch on the designated channel. The listening
watch was imposed to ensure that the person maneuvering the vessel
hears proposed passing signals or other safety related communications
from other vessels. While the watch should be continuous, FCC
regulations (47 CFR 80.309) specifically allow that the person
maintaining the watch may perform other duties. This is consistent with
the Coast Guard view that the VHF radio and the bridge-to-bridge
calling channel are tools to aid the person piloting the vessel in
collision avoidance. It is not unusual for Coast Guard and Naval
vessels to designate an officer or crewman to the ``radio watch'' on
the bridge. While this person may provide an additional factor of
safety on a crowded, noisy bridge, this does not relieve the master or
person piloting the vessel of the duty to maintain the listening watch.
Under no circumstances should the bridge-to-bridge channel be patched
to headphones for the designated ``radio-watch''. The master or person
conning the vessel needs to be aware of communications directed at
their vessel as well as other communications, such as vessel movements
elsewhere on a waterway that may pose a future hazard to the vessel.
Thus any filtering by a designated ``radio watch'' person may defeat
the purpose of the statute.
2. Inland Waterways Navigation Regulations
Title 33 CFR 162 contains the Inland Waterways Navigation
Regulations for 43 different waterways in the United States ranging in
size and significance from Lake Tahoe to the entire Atlantic seacoast
south of the Chesapeake Bay.
The regulations in 33 CFR 162.65 were promulgated by the Army Corps
of Engineers on April 30, 1938 and were transferred without change to
the Coast Guard in 1977 (42 FR 5178). The particular section, which is
now 33 CFR 162.65(b)(3), has never been amended. This regulation
predates the Inland Navigation Rules Act of 1980 (33 U.S.C. 2001 et
seq). There is no evidence in the legislative history of the Inland
Navigation Rules Act that the drafters addressed potential conflicts
with part 162. This is understandable, because the Inland Waterways
Navigation Regulations in part 162 address local navigation issues
unrelated to the Inland Navigation Rules.
Discussion
The Coast Guard proposes to remove 33 CFR 162.65(b)(3)(iv) because
it contradicts statutory provisions in the Inland Navigation Rules Act.
While generally the regulations in part 162 provide restrictions for a
specific body of water, the regulations in Sec. 162.65 apply broadly on
all navigable waters of the United States between the Chesapeake Bay
and St. Marks, Florida, on the Gulf of Mexico. Section 162.65(b)(3)(iv)
provides that a vessel being overtaken by another shall slacken speed
sufficiently to permit the passage to be effected with safety to both
vessels. This regulation directly conflicts with Inland Navigation Rule
13 which places the responsibility for keeping clear on the overtaking
vessel and Inland Rule 17 which requires the overtaken vessel to
maintain course and speed.
Because this regulation is contradictory to the statutory
provisions of the Inland Navigation Rules, and is applicable to a wide
range of navigable waters it should be removed. The Coast Guard does
not believe that this particular regulation is widely used or even
generally known to the average mariner. In contrast, the Inland
Navigation Rules are widely available, specifically tested as part of
the licensing of mariners, and required to be carried on all vessels 12
meters or more in length.
Removal of this regulation will have little or no practical effect
on the mariner. As a practical matter, vessels being overtaken in
narrow channels sometimes slacken speed or maneuver to assist the
overtaking vessel, thereby appearing to violate Inland Navigation Rule
17 which requires the overtaken vessel to maintain course and speed.
However, where specifically agreed to by VHF radio or other means, the
overtaken vessel may slacken speed or maneuver to assist in the passage
consistent with Inland Rule 2 (Good Seamanship). Thus the Inland
Navigation Rules provide both flexibility and consistency that the
mariner can rely on. First, if a vessel agrees to be overtaken by
whistle signal or other means, that vessel will maintain course and
speed. Second, if some action by the overtaken vessel, such as slowing
or maneuvering to the outer edge of the channel, is specifically agreed
to, then the overtaken vessel does not violate the Navigation Rules by
maneuvering as agreed.
Regulatory Evaluation
This proposal is not a significant regulatory action under
Executive Order 12866 and not significant under the ``Department of
Transportation Regulatory Policies and Procedures'' (44 FR 11040,
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a Full Regulatory Assessment is
unnecessary. Since this rulemaking basically corrects inconsistencies
and places no new requirements on the maritime community further
Regulatory Evaluation was deemed unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated businesses that are
not dominant in their field and that otherwise qualify as ``small
business concerns'' under section 3 of the Small Business Act (15
U.S.C. 632).
Because it expects the impact of this proposal to be minimal, the
Coast Guard certifies under 5 U.S.C. 605(b) that this proposal, if
adopted, will not have a significant economic impact on a substantial
number of small entities.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this rulemaking does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. Under Federal law,
authority to issue regulations to amend the Inland Waterways Navigation
Regulations and the Vessel Bridge-to-Bridge Radiotelephone Regulations
is vested in the Secretary of Transportation and delegated to the Coast
Guard. Therefore, if this rule becomes final, the Coast Guard intends
it to preempt State action addressing this subject matter.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2 of Commandant Instruction
M16475.1B, this rulemaking is categorically excluded from further
environmental documentation as this administrative action clearly has
no environmental effect. A Categorical Exclusion Determination is
available in the docket for inspection or copying where indicated under
ADDRESSES.
List of Subjects
33 CFR Part 26
Communications Equipment, Navigation (water), Marine safety, Radio,
Telephone, Vessels.
33 CFR Part 162
Navigation (water), Waterways.
For the reasons set out in the preamble, the Coast Guard proposes
to amend 33 CFR part 26 as follows:
PART 26--[AMENDED]
1. The authority citation for part 26 is revised to read as
follows:
Authority: 33 U.S.C. 1207; 49 CFR 1.46.
2. Section 26.05 is revised to read as follows:
Sec. 26.05 Use of Radiotelephone.
Section 5 of the Act states that the radiotelephone required by
this Act is for the exclusive use of the master or person in charge of
the vessel, or the person designated by the master or person in charge
to pilot or direct the movement of the vessel, who shall maintain a
listening watch on the designated frequency. Nothing herein shall be
interpreted as precluding the use of portable radiotelephone equipment
to satisfy the requirements of this act.
PART 162--[AMENDED]
1. The authority citation for part 162 continues to read as
follows:
Authority: 33 U.S.C. 1231; 49 CFR 1.46.
Sec. 162.65 [Removed]
2. Section 162.65(b)(3)(iv) is removed.
* * * * *
Dated: March 8, 1994.
W.J. Ecker,
Rear Admiral, U.S. Coast Guard, Chief, Office of Navigation Safety and
Waterway Services.
[FR Doc. 94-8375 Filed 4-7-94; 8:45 am]
BILLING CODE 4910-14-M
