[Federal Register Volume 62, Number 144 (Monday, July 28, 1997)]
[Rules and Regulations]
[Pages 40273-40276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19780]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD 05-96-010]
RIN 2115-AE84
Regulated Navigation Area; Delaware Bay and River, Salem River,
Christina River, and Schuylkill River
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is amending its regulations governing a
regulated navigation area on the Delaware Bay and River. The changes
extend the current regulated navigation area to include the Salem,
Christina, and Schuylkill Rivers between Trenton, NJ, and the Delaware
Breakwater. The changes also establish new regulations governing vessel
movement within the expanded regulated navigation area. Many of these
requirements were previously imposed on a case-by-case basis through
issuance of temporary rules and Captain of the Port Orders. The Coast
Guard believes these changes will increase public awareness and improve
navigation safety within the regulated navigation area.
EFFECTIVE DATE: This rule is effective on August 27, 1997.
ADDRESSES: The comments and other materials referred to in this
preamble are available for inspection or copying at the Marine Safety
Office Philadelphia, PA during normal working hours between 7:30 a.m.
and 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Lt Robert Hennessy, Assistant Chief, Port Operations Department
(ACPOD), at the Marine Safety Office Philadelphia, PA, or by telephone
at (215) 271-4883.
SUPPLEMENTARY INFORMATION:
Regulatory History
On November 7, 1996, the Coast Guard published a notice of proposed
rulemaking entitled Regulated Navigation Area; Delaware Bay and River,
Salem River, Christina River, and Schuylkill River in the Federal
Register (61 FR 57599). The comment period ended February 5, 1997. The
Coast Guard received two letters commenting on the proposal. No public
hearing was requested, and none was held.
Background and Purpose
This rule is adopted as part of an overall safety program
implemented by the Captain of the Port, Philadelphia, PA to enhance the
safe transportation of certain dangerous cargoes in the Captain of the
Port zone.
Existing 33 CFR 165.510 established a regulated navigation area for
the waters of the Delaware Bay and Delaware River south of the Delaware
Memorial Bridge. It prohibits a vessel with a draft of greater than 55
feet from entering the regulated navigation area. It also prohibits oil
transfer operations within the regulated navigation area except within
specified anchorage grounds or with the authorization of the Captain of
the Port. This rule expands the regulated navigation area, applies it
when vessels transit with dangerous cargoes, and imposes operational
restrictions on vessels operating within the regulated navigation area.
In the past, the Captain of the Port, Philadelphia, established a
temporary safety zone whenever a vessel carrying a specified dangerous
cargo transited the area. The temporary safety zone regulations
routinely prohibited entry into the waters surrounding the vessel and
facility without specific permission from the Coast Guard. The COTP
imposed operating restrictions, similar to the measures contained in
this final rule, as a condition of entry into the safety zone. The
temporary rules were often issued on short notice and, as a result, may
not have been timely published in the Federal Register.
To avoid the need to issue temporary rules and improve the public's
knowledge of potential restrictions on navigation, the Coast Guard is
amending 33 CFR 165.510. Definitions routinely included in the
temporary rules are included in the final rule. The final rule applies
to all vessels operating in the regulated navigation area, except
vessels engaged in law enforcement, servicing aids to navigation, or
surveying, maintaining or improving the waterways (e.g., dredges and
survey vessels). The 55-foot draft limitation is retained, but a note
is added indicating that the project depth of the Delaware River is 40
feet. Vessel to vessel oil transfer operations, excluding bunkering,
will continue to be prohibited within the regulated navigation area
except within designated anchorage grounds or with permission of the
COTP.
Both vessels carrying dangerous cargoes and vessels operating in
the vicinity of vessels carrying dangerous cargoes must comply with
operational requirements and restrictions. The master, owner, or
operator of a vessel carrying dangerous cargo must give notice to the
COTP at least 72 hours before entering or departing the regulated
navigation area and at least 12 hours before any vessel movement within
the regulated navigation area. The required notice must include a
report of the vessel's propulsion and machinery status and, for foreign
flag vessels, the notice must include any outstanding deficiencies
identified by the flag state or classification society.
A vessel carrying dangerous cargo is prohibited from transiting
within the regulated navigation area if visibility is or is expected to
be less than two nautical miles. Anchoring is permitted only in an
emergency or upon COTP approval. Unless the vessel has two separate and
independent steering control systems with duplicate pilot house
steering gear controls, the master, owner, or operator is required to
maintain a manned watch within the steering gear compartment during any
transit within the regulated navigation area. While at anchor, the
master, owner, or operator is required to have the engines in a
condition that full power would be available within five minutes
whenever sustained winds exceeded 25 knots. If sustained winds reach or
exceed 40 knots, the vessel's main engines must be on line. Each vessel
is required to have emergency towing gear rigged while underway, at
anchor, or moored. Transfer of dangerous cargo is also prohibited while
a vessel is at anchor or bunkering.
Operational restrictions are also imposed on vessels operating in
the vicinity of a vessel carrying dangerous cargo. While a vessel
carrying dangerous cargo is underway, no vessel is permitted within 500
yards of either side or within 1000 yards of the bow or stern without
permission of the COTP. No vessel is allowed within 100 yards of a
moored or anchored vessel carrying dangerous cargo. Commercial vessels
attending a vessel carrying dangerous cargo are allowed to transit
within this area with permission from the master of the vessel carrying
dangerous cargo. If permitted to enter, the vessel is required to
maintain a continuous radio guard, operate at a ``no wake'' speed or
the minimum speed to maintain steerage, and to proceed as otherwise
directed by the COTP. No vessel is permitted to overtake a vessel
carrying dangerous cargo unless the overtaking can be completed before
reaching any bends in the channel and the masters or operators of both
vessels clearly agree on arrangements for the overtaking.
Specific restrictions also apply to vessels operating above the C&D
Canal.
[[Page 40274]]
A vessel carrying dangerous cargo is required to have a tug escort, and
to the maximum extent possible, vessel masters or operators are
required to avoid meeting situations on river bends.
This final rule includes a provision that the COTP will announce
scheduled movements of vessels carrying dangerous cargoes via Broadcast
Notices to Mariners. These broadcasts will not only alert the maritime
public that restrictions will be in effect, but they will also allow
mariners to plan activities to minimize the impact of the restrictions.
Discussion of Comments and Changes
Two respondents to the Notice of Proposed Rulemaking provided a
number of specific comments on the proposed rule. One letter was from a
company that operates barges which carry dangerous cargoes. The other
letter was from the operator of a launch service.
One comment noted that the proposed rule, by incorporating the
definition of dangerous cargoes provided in 33 CFR 160.203, would
require barges carrying bulk cargoes listed in Table 1 of 46 CFR part
153 to adhere to the requirements of the NPRM. The Coast Guard's
intention in this rulemaking was to establish a permanent rule to
incorporate requirements previously imposed through issuance of
temporary rules and Captain of the Port Orders. This rulemaking was not
intended to expand the scope to apply restrictions to all barges
carrying cargoes that were not previously subject to case-by-case
restrictions. Therefore, for the purposes of this part, the definition
of dangerous cargo excludes those substances listed in Table 1 of 46
CFR part 153 and referred to in Sec. 160.203(d). Additionally,
paragraph 510(f) of this rule has been changed to expressly not
incorporate Table 1 of 46 CFR part 153.
Proposed Sec. 165.510(b) defined COTP as Captain of the Port
Philadelphia and any Coast Guard commissioned, warrant, or petty
officer authorized to act on his or her behalf. One comment asked how
the public would know that a commissioned, warrant or petty officer had
been authorized to act on behalf of the COTP. Under existing Coast
Guard policy, a commissioned, warrant, or petty officer is designated
in writing to act on behalf of the COTP when he or she completes
qualification requirements for various positions. A commissioned,
warrant, or petty officer would not be assigned responsibilities
onscene if he or she had not been delegated the necessary authority.
However, if a member of the public has concerns about the authority
behind a specific request or order, he or she should request
clarification.
One comment questioned the exemption in proposed Sec. 165.510(c)
for vessels engaged in law enforcement, servicing aids to navigation,
dredging, or surveying, maintaining, or improving waterways. The
commenter disagreed that law enforcement vessels, vessels servicing
aids to navigation, and survey vessels within the Regulated Navigation
Area should be exempt from this rule at all times. Although the Coast
Guard understands this concern, the final rule has not been changed.
The exemption applies only to a vessel actually engaged in one of the
specified activities within the Regulated Navigation Area, and not when
a vessel is merely transiting. Additionally, the Coast Guard does not
believe that the hazard to navigation created by a vessel conducting
surveys or engaged in dredging is such that it should always be
required to discontinue its operations when a vessel carrying dangerous
cargo is transiting the area. However, the Coast Guard will closely
monitor this activity on a case-by-case basis, and may require a vessel
which poses a particular risk to cease operations and maintain an
appropriate safe distance. The Coast Guard also believes that nothing
in this rule relieves any master from the general requirement to
operate his or her vessel in a prudent manner at all times.
In Sec. 165.510(d) of the NPRM, the Coast Guard proposed a
requirement that a vessel with a draft greater than 55 feet obtain
permission of the Captain of the Port prior to transiting the area
between the southern boundary of the Regulated Navigation Area and the
southern span of the Delaware Memorial Bridge. The Coast Guard received
no comments on this paragraph. The Coast Guard believes, however, that
the wording in the proposed paragraph is unnecessarily confusing, and
therefore has changed that wording to more clearly state that a vessel
with a draft greater than 55 feet may not enter the Regulated
Navigation Area without obtaining permission of the Captain of the
Port. Also, in Sec. 165.510(d) of the NPRM, the Coast Guard proposed
adding a Note stating that the project depth of the Delaware River is
40 feet. The project depth in parts of the Delaware River, such as
Newbold Channel is less than 40 feet, however. Therefore, the Coast
Guard has changed the Note to eliminate possible confusion.
In Sec. 165.510(e) of the NPRM, the Coast Guard proposed a
requirement to prohibit oil transfer operations between the southern
boundary of the RNA and the southern span of the Delaware Memorial
Bridge except as authorized by the COTP or within the anchorage
designated in 33 CFR 110.157(a)(1). The Coast Guard received no
comments on this paragraph; however, after further consideration, the
Coast Guard believes this requirement is unduly restrictive. As
written, 165.510(e) prohibits oil transfer operations at fixed
facilities, as well as all bunkering operations. This paragraph does
not reflect the Coast Guard's intent to codify the current practice
achieved through issuance of temporary safety zones. Therefore, the
Coast Guard is amending Sec. 165.510(e) to more precisely state that
unless authorized by the COTP, no vessel to vessel oil transfer
operations, excluding bunkering, may be conducted within the area
between the southern boundary of the RNA and the southern span of the
Delaware Memorial Bridge except within the anchorage ground designated
in 33 CFR 110.157(a)(1).
In Sec. 165.510(f)(6) of the NPRM, the Coast Guard proposed a
requirement that a vessel carrying dangerous cargo and anchored within
the regulated area have its main engines on five-minute standby when
sustained winds are greater than 25 knots but less than 40 knots, and
on line when sustained winds reached 40 knots or more. One comment
suggested modifying this provision to require that engines be on five-
minute standby when sustained winds are greater than 25 knots but less
than 30 knots, on line when sustained winds are forecast to be greater
than 30 knots but less than 40 knots, and that the vessel also have a
pilot embarked and tug alongside whenever sustained winds of greater
than 40 knots are forecast. The Coast Guard has carefully considered
this comment, but has not changed the requirement in this final rule.
The Coast Guard developed the proposed requirement after receiving
input from the Philadelphia Maritime Advisory Committee and the
Delaware Bay and River Pilots Association. Mariners must monitor
weather forecasts in order to take the steps necessary to comply with
this rule. Most vessels are capable of safely maintaining their
positions at anchor or maneuvering as needed even if winds are 40 knots
or greater. The Coast Guard will continue to monitor vessel and weather
status. If a specific vessel poses a particular threat, the COTP may
issue a COPT order requiring additional protective measures on a case-
by-case basis. The COTP may also establish a temporary safety zone to
limit vessel movement if severe weather, such as hurricane conditions,
is forecast.
Another comment stated that the requirement in proposed
Sec. 165.510(g)
[[Page 40275]]
that passing vessels remain 500 yards from the sides and 1,000 yards
from the bow or stern of a vessel carrying dangerous cargo would
essentially halt all large commercial traffic during any transit of a
vessel carrying dangerous cargo in most areas of the regulated area.
The Coast Guard notes that a vessel may approach closer with COTP
permission. It is not the Coast Guard's intent to stop all traffic
within the port. The COTP may permit a vessel to enter within 500 yards
from the sides and 1,000 yards from the bow or stern of a vessel
carrying dangerous cargo if the masters or pilots of both vessels have
coordinated safe passing arrangements. Therefore, the Coast Guard has
not changed this provision in the final rule.
In Sec. 165.510(g)(2)(ii) of the NPRM, the Coast Guard proposed a
requirement that a master, owner, or operator of a vessel given
permission to come or remain near a vessel carrying dangerous cargo
under paragraph (g)(1) operate at a ``no wake'' speed or the minimum
speed needed to maintain steerage, whichever is less. Although no
comments were received on this paragraph, the Coast Guard believes that
the wording in the proposed paragraph is unnecessarily confusing and
could create an unsafe situation in the event that the ``no wake''
speed is less than the speed necessary to maintain steerage. Therefore,
the Coast Guard has eliminated the phrase ``whichever is less'' from
the final rule.
Section 165.510(h)(2) of the NPRM proposed additional requirements
for vessels operating above the C&D Canal. The proposed paragraph
required that a vessel carrying dangerous cargo and an oncoming vessel
shall not meet at a relative speed greater than prudent under the
prevailing weather conditions or 20 knots, whichever is less. The Coast
Guard did not receive comments on this paragraph; however, upon further
review, the Coast Guard believes that requiring vessels to maintain a
relative speed of 20 knots or less is unnecessarily restrictive. The
Coast Guard believes that basic seamanship and the rules of the road
should dictate the relative speed of oncoming vessels. Therefore, the
Coast Guard has eliminated the first clause of Sec. 165.510(h)(2) which
limits the speed of vessels. As amended, Sec. 165.510(h)(2) will merely
state that meeting situations shall be avoided on river bends to the
maximum extent possible.
A comment also noted that many recreational vessels do not monitor
marine frequencies. Therefore, recreational boaters may not be aware of
a Broadcast Notice to Mariners concerning scheduled movements of a
vessel carrying dangerous cargo and the restrictions imposed by this
rule. The Coast Guard agrees that many vessels do not monitor Broadcast
Notices or follow other prudent navigation practices. However, failure
to do so would not excuse a violation of this rule.
Regulatory Evaluation
This 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 been exempted from review 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
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
The practice of establishing a safety zone around a vessel loaded with
certain dangerous cargoes, notably explosives and Liquefied Petroleum
Gas, has been in effect for many years. Small and large companies with
vessels operating in Philadelphia are aware of scheduled transits of
vessels loaded with dangerous cargoes and adjust their vessel movements
to minimize any economic impact. These restrictions have been
implemented on a case-by-case basis in the form of Captain of the Port
Orders or temporary safety zones for each transit. By establishing a
permanent rule the Coast Guard will achieve economies in manpower and
administrative time, provide the Port of Philadelphia with the widest
dissemination of these precautionary measures, and minimize the
potential dangers of these movements to the port community. Because
this regulated navigation area is not expected to unduly impede the
flow of traffic, the impact of this rule is expected to be minimal, and
the Coast Guard believes that this rule will have only minimal economic
impact.
Small Entities
The Coast Guard considered whether this rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' included (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000. This rule merely codifies the Captain
of the Port's past practices of issuing temporary rules and Captain of
the Port Orders when vessels carrying certain dangerous cargoes are
transiting. Because those practices were conducted without adverse
affects to small entities, the impact of this rule is expected to be
minimal. Therefore, the Coast Guard certifies under section 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.
Collection of Information
This rule contains no collection-of-information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that it does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that under section 2.B.2e.(34) of Commandant Instruction
M16475.1B (as revised by 61 FR 13563, March 27, 1996), this rule is
categorically excluded from further environmental documentation. A
Categorical Exclusion Determination Statement has been prepared and
placed in the rulemaking docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine Safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons set out in the Preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-6, and 160.5; 49 CFR 1.46.
2. Section 165.510 is revised to read as follows:
Sec. 165.510 Delaware Bay and River, Salem River, Christina River and
Schuylkill River-Regulated Navigation Area.
(a) Regulated Navigation Area. The following is a Regulated
Navigation Area: The navigable waters of Delaware Bay and River, Salem
River, Christina River, and Schuylkill River, in an area
[[Page 40276]]
bounded on the south by a line drawn across the entrance to the
Delaware Bay between Cape May Light and Harbor of Refuge Light and then
continuing to the northernmost extremity of Cape Henlopen, and bounded
on the north by a line drawn across the Delaware River between Trenton,
NJ and Morrisville, PA along the southern side of the U.S. Route 1
Bridge.
(b) Definitions. As used in this section:
COTP means the Captain of the Port, Philadelphia, PA and any Coast
Guard commissioned, warrant or petty officer who has been authorized by
the COTP to act on his or her behalf.
Dangerous Cargo means those cargoes listed in Sec. 160.203 of this
chapter when carried in bulk, but does not include cargoes listed in
Table 1 of 46 CFR part 153.
Underway means that a vessel is not at anchor, made fast to the
shore, or aground.
(c) Applicability. This section applies to any vessel operating
within the Regulated Navigation Area, including a naval or public
vessel, except a vessel engaged in:
(1) Law enforcement;
(2) Servicing aids to navigation; or
(3) Surveying, maintaining, or improving waters within the
Regulated Navigation Area.
(d) Draft limitation. Unless otherwise authorized by the COTP, no
vessel with a draft greater than 55 feet may enter this regulated
navigation area.
Note: The project depth in many areas of the Regulated
Navigation Area is less than 55 feet.
(e) Oil transfer operations. Unless otherwise authorized by the
COTP, no vessel to vessel oil transfer operations, excluding bunkering,
may be conducted within the area between the southern boundary of this
regulated navigation area and the southern span of the Delaware
Memorial Bridge except within the anchorage ground designated in
110.157(a)(1) of this chapter.
(f) Requirements for vessels carrying dangerous cargoes. The
master, owner, or operator of a vessel carrying a dangerous cargo
shall:
(1) Notify the COTP at least 72 hours before the vessel enters or
departs the regulated navigation area and at least 12 hours before the
vessel moves within the regulated navigation area. The notice must
include a report of the vessel's propulsion and machinery status and,
for foreign flag vessels, the notice must include any outstanding
deficiencies identified by the vessel's flag state or classification
society;
(2) Not enter, get or remain underway within the regulated
navigation area if visibility is or is expected to be less than two (2)
miles. If during the transit visibility becomes less than two (2)
miles, the vessel must seek safe anchorage and notify the COTP
immediately;
(3) Not anchor in any area within the regulated navigation area
unless in times of emergency or with COTP permission;
(4) Not transfer dangerous cargo while the vessel is at anchor or
bunkering;
(5) Maintain a manned watch in the steering compartment whenever
the vessel is underway within the regulated navigation area unless the
vessel has two separate and independent steering control systems with
duplicate pilothouse steering gear control systems which meet the
requirements of 46 CFR 85.25-55;
(6) When anchored within the regulated navigation area and:
(i) Sustained winds are greater than 25 knots but less than 40
knots, ensure the main engines are ready to provide full power in five
minutes or less; and
(ii) Sustained winds are 40 knots or over, ensure that the main
engines are on line to immediately provide propulsion;
(7) While moored within the regulated navigation area, ensure that
at least two wire cable mooring lines (firewarps) are rigged and ready
for use as emergency towing hookups fore and aft on the outboard side
of the vessel;
(8) While underway or anchored within the regulated navigation
area, ensure that at least two wire cable mooring lines (firewarps) are
rigged and ready for use as emergency towing hookups fore and aft on
the vessel; and,
(9) Proceed as directed by the COTP.
(g) Requirements for vessels operating in the vicinity of a vessel
carrying dangerous cargoes. (1) Except for a vessel that is attending a
vessel carrying dangerous cargo with permission from the master of the
vessel carrying dangerous cargo or a vessel that is anchored or moored
at a marina, wharf, or pier, and which remains moored or at anchor, no
vessel may, without the permission of the COTP:
(i) Come or remain within 500 yards of the port or starboard side
or within 1,000 yards of the bow or stern of an underway vessel that is
carrying dangerous cargo; or
(ii) Come or remain within 100 yards of a moored or anchored vessel
carrying dangerous cargo.
(2) The master, owner, or operator of any vessel receiving
permission under paragraph (g)(1) of this section shall:
(i) Maintain a continuous radio guard on VHF-FM channels 13 and 16;
(ii) Operate at ``no wake'' speed or the minimum speed needed to
maintain steerage; and
(iii) Proceed as directed by the COTP.
(3) No vessel may overtake a vessel carrying dangerous cargoes
unless the overtaking can be completed before reaching any bend in the
channel. Before any overtaking, the pilots, masters or operators of
both the overtaking vessel and the vessel being overtaken must clearly
agree on the circumstances of the overtaking, including vessel speeds,
time and location of overtaking.
(h) Additional restrictions above the C&D Canal. When operating on
the Delaware River above the C&D Canal:
(1) A vessel carrying dangerous cargo must be escorted by at least
one commercial tug; and
(2) Meeting situations shall be avoided on river bends to the
maximum extent possible.
(i) The COTP will issue a Broadcast Notice to Mariners to inform
the marine community of scheduled vessel movements during which the
restrictions imposed by paragraphs (g) and (h) of this section will be
in effect.
Dated: July 8, 1997.
Roger T. Rupe, Jr.,
Vice Admiral, U.S. Coast Guard Commander, Fifth Coast Guard District.
[FR Doc. 97-19780 Filed 7-25-97; 8:45 am]
BILLING CODE 4910-14-M