[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,

[[Page 57254]]

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