[Federal Register Volume 64, Number 73 (Friday, April 16, 1999)]
[Rules and Regulations]
[Pages 18810-18814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9568]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CCGD08-97-020]
RIN 2115-AE84


Mississippi River, LA: Regulated Navigation Area

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising the Regulated Navigation Area 
(RNA) for vessels operating in the Mississippi River below Baton Rouge, 
including South Pass and Southwest Pass, by adding requirements for 
vessels of 1,600 gross tons or greater operating in the RNA. These 
requirements entail enhanced safety procedures for vessels of 1,600 
gross tons or greater operating on the Mississippi River. The Coast 
Guard is also requiring moored or anchored passenger vessels with 
embarked passengers to maintain manned pilothouse watches for the 
safety of the vessel, crew and passengers.

DATES: This final rule is effective April 16, 1999, with the exception 
of Sec. 165.810(f)(1), which is effective June 1, 1999.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at the office of the Eighth Coast Guard District, 
Marine Safety Division, 501 Magazine Street, Room 1341, New Orleans, 
LA, during normal office hours between 7:30 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays. The telephone number is (504) 
589-4686.

FOR FURTHER INFORMATION CONTACT: Mr. M.M. Ledet, Vessel Traffic 
Management Specialist, at the Eighth Coast Guard District, Marine 
Safety Division, New Orleans, LA, or by telephone at (504) 589-4686.

SUPPLEMENTARY INFORMATION: 

Regulatory History

    On October 30, 1997 (62 FR 58650), the Coast Guard published an 
interim rule with request for comments entitled ``Regulated Navigation 
Area Regulations; Mississippi River, LA-Regulated Navigation Area'' in 
the Federal Register. The Coast Guard received nine letters commenting 
on the interim rule. One comment requested a public hearing to discuss 
33 CFR 165.810(e) ``Watch requirements for anchored and moored 
passenger vessels.'' Because this section was not open for comment, 
since there had been several previous opportunities for the public to 
provide input on this watch requirement, the Coast Guard did not opt to 
hold a public hearing. However, the Coast Guard took into consideration 
the information contained in the comment pertaining to 33 CFR 
165.810(e) and, after a thorough review of the existing regulations, 
has changed this section to eliminate any confusion as to the 
definition of a ``small passenger-carrying vessel'' by referring to the 
definition contained in 46 CFR 175.110.
    On August 29, 1997 (62 FR 45775), the Coast Guard published a 
notice of proposed rulemaking entitled ``Regulated Navigation Area 
Regulations; Mississippi River, LA-Regulated Navigation Area'' in the 
Federal Register. The Coast Guard received two letters commenting on 
the proposed rulemaking. No public hearing was requested, and none was 
held. On December 14, 1996, the 36,000 gross ton M/V BRIGHT FIELD 
allided with the Riverwalk store complex causing extensive damage and 
numerous injuries. This marine casualty prompted the Captain of the 
Port New Orleans to issue Captain of the Port Orders to moored or 
anchored passenger vessels operating on the Mississippi River. These 
orders required those vessels to maintain manned pilothouse watches in 
order to monitor river activity and to be immediately available to 
activate emergency procedures to protect the vessel, crew, and 
passengers in the event of an emergency procedures to protect the 
vessel, crew, and passengers in the event of an emergency radio 
broadcast, danger signal, or other, visual indication of a problem. The 
initial intent of this order was to establish an interim measure to 
prevent future allisions and collisions. On March 18, 1997 (62 FR 
14637, March 27, 1997), the Coast Guard established a temporary 
regulated navigation area (RNA) affecting the operation of downbound 
tows in the Lower Mississippi River from mile 437 at Vicksburg, MS, to 
mile 88 above Head of Passes. This RNA was subsequently amended on 
March 31, (62 FR 15398, April 1, 1997), March 29 (62 FR 16081, April 4, 
1997), April 4 (62 FR 17704, April 11, 1997) and April 20 (62 FR 23358, 
April 30, 1997). The amendments added operating requirements for 
vessels of 1,600 gross tons or greater; increased the operating 
limitations on tank barges and ships carrying hazardous chemicals and 
gasses; and extended the RNA to the boundary of the territorial sea at 
the approaches to Southwest Pass.
    This RNA and its subsequent amendments were also prompted by 
unprecedented high waters on the Mississippi River. Conditions on the 
Lower Mississippi River became so severe that they necessitated the 
opening of the Bonnet Carre Spillway by the Army Corps of Engineers in 
order to ease high water and partially combat very strong river 
currents. The high water contributed to numerous barge breakaways and a 
marked increase in vessel accidents. The additional operating 
requirements were designed to provide a greater margin of safety for 
vessels of 1,600 gross tons or greater operating on this waterway.
    On April 20, 1997 (62 FR 23358, April 30, 1997), the towboat and 
barge limitations and the chemical and gas ship operating restrictions 
expired. The regulations affecting self-propelled vessels of 1,600 
gross tons or greater were extended until July 1, 1997. On June 24, 
1997 (62 FR 35097, June 30, 1997), the regulations affecting self-
propelled vessels of 1,600 gross tons or greater were again extended, 
until

[[Page 18811]]

October 31, 1997. The purpose of this extension was to maintain the 
enhanced margin of safety that had been facilitated by these 
regulations. Although the Lower Mississippi River was receding, 
dangerous and unpredictable currents remained.
    This final rule makes permanent the requirements of the temporary 
RNA, 33 CFR 165.T08-001, and adds those requirements to the permanent 
RNA established in 33 CFR 165.810. There was no adverse feedback from 
the public on the extensions or the concomitant operating requirements. 
Moreover, the additional operating requirements imposed increased the 
level of safety in the RNA.

Background and Purpose

    In the interest of navigation safety in the narrow confines of the 
Lower Mississippi River, the Coast Guard is revising the regulations in 
33 CFR 165.810 affecting self-propelled vessels of 1,600 gross tons or 
greater. The RNA described in this rule is required to protect vessels, 
bridges, shore-side facilities, commercial businesses, and the public 
from a safety hazard created by operations of deep-draft vessels along 
the Lower Mississippi River. During 1995 and 1996 over 300 self-
propelled vessels of 1,600 gross tons or greater operating on the 
Mississippi River experienced casualties involving loss of power, loss 
of steering, or engine irregularities. The regulations will enhance the 
safety of navigation on the river and protect shoreside facilities, 
including commercial businesses, by causing masters and engineers to 
take measures that will minimize the risk of steering casualties, 
engine failures, and engine irregularities. They also place the ship in 
a manning status and operating condition that will allow the vessel to 
take prompt and appropriate emergency action should a casualty occur, 
thereby reducing the likelihood of a cascading series of allisions and 
collisions following a casualty.
    To enhance safety for passenger vessels anchored or moored within 
the RNA, the Coast Guard is requiring certain passenger vessels to 
maintain manned pilothouse watches to monitor activity on the water and 
to be immediately available to activate emergency procedures to protect 
the vessel, crew, and passengers in the event of an emergency radio 
broadcast, danger signal, or other, visual indication of a problem. 
This measure will significantly enhance the safety of passenger vessels 
moored or anchored within the RNA. Each ferryboat, and each small 
passenger vessel to which 46 CFR 175.110 applies, will be required to 
monitor and respond, but may conduct monitoring from a vantage point 
other than the pilothouse using a portable radio. These vessels were 
given consideration because of their relatively small size and the 
distribution of safety and emergency system controls throughout the 
vessel.

Discussion of Rule

    The existing regulation in 33 CFR 165.810 establishes an RNA for 
the waters of the Mississippi River below Baton Rouge, LA, including 
South Pass and Southwest Pass. By this rule the Coast Guard adds 
specific operational requirements to certain vessels when transiting, 
moored, or anchored in the RNA. These requirements are designed to 
assist in the prevention of collisions and groundings, ensure port 
safety, enhance the safety of moored or anchored passenger vessels, and 
protect the navigable waters of the Mississippi River from 
environmental harm.
    Subsection (e) of this rule addresses additional operating 
requirements for passenger vessels with embarked passengers. Passenger 
vessels shall continuously man their pilothouse and remain apprised of 
river activities in their vicinity by monitoring VHF emergency and 
working frequencies. This allows an individual operating a passenger 
vessel to be immediately available to take necessary action to protect 
the vessel, crew, and passengers in the event that an emergency 
broadcast, danger signal or other visual indication of a problem is 
received or detected. An exception to this rule is made for ferryboats, 
and for small passenger vessels to which 46 CFR 175.110 applies. 
Continuously manned pilothouses are not required on these vessels since 
shipboard emergency systems are normally distributed throughout the 
vessel rather than being centralized on the bridge and in the 
engineroom. Vessel personnel can adequately monitor VHF frequencies by 
portable radio from a vantagepoint other than the pilothouse.
    Subsection (f) of this rule pertains to all self-propelled vessels 
of 1,600 or more gross tons covered by 33 CFR Part 164. The rule 
requires that the master shall ensure that the vessel is in compliance 
with 33 CFR Part 164 and that the engineroom is manned at all times 
while the vessel is under way in the RNA. Additionally, this subsection 
requires the master to ensure the chief engineer has certified that the 
main propulsion plant is ready in all respects for operations including 
the main-propulsion air-start systems, fuel systems, lube-oil systems, 
cooling systems, and automation systems; that main propulsion machinery 
is available to immediately respond to the full range of maneuvering 
commands; that any load-limiting programs or automatic acceleration-
limiting programs that would limit the speed of response to engine 
orders beyond that needed to prevent immediate damage to the propulsion 
machinery are capable of being overridden immediately; that cooling, 
lubricating, and fuel-oil systems are within proper temperature 
parameters; and that standby systems are ready to be placed immediately 
in service. These additional operating conditions are required so long 
as the vessel is under way in the RNA.

Discussion of Comments and Changes

    The Coast Guard received nine comments regarding the interim rule.

Comment Relating to 33 CFR 165.810(e)

    One comment received pertained to paragraph (e) of this rule. 
Although this subsection was not open for comment, the comment voiced 
the opinion that the term ``small passenger vessel'' needed to be 
defined and that passenger-carrying vessels without provisions for 
overnight passengers should not be included in the prescriptive 
provisions of this RNA rule. It was learned during the investigation 
into the M/V BRIGHT FIELD collision that the US-flagged vessels in the 
area were the QUEEN OF NEW ORLEANS and the CREOLE QUEEN. The QUEEN OF 
NEW ORLEANS was moored, and the CREOLE QUEEN had just got underway. 
Each had a manned bridge, which heard the VHF-FM broadcast and could 
ascertain the situation and take appropriate action. The two foreign-
flagged vessels near the accident were the M/V ENCHANTED ISLE and the 
M/V NIEUW AMSTERDAM. Each was moored, and neither monitored the VHF-FM 
radio, but each had an officer on the bridge who quickly ascertained 
the emergency situation and began implementing emergency measures.
    This regulation will require passenger vessels to man the 
pilothouse and will impose a high standard of care, which the four 
vessels discussed met without a regulation. This regulation imposes on 
transient vessels, including foreign-flag passenger vessels, the same 
standard of care already placed on local passenger vessels in their 
Certificate of Inspection issued by the OCMI. However, after careful 
review of the arrangement and configuration of these vessels and the 
comment's concern that the regulations did not specifically define 
``small passenger vessel'' in the proposed rules, the Coast Guard has 
revised paragraph (e)(2) to allow all small passenger

[[Page 18812]]

vessels to which 46 CFR 175.110 applies to use portable radios to 
continuously monitor vessel-traffic and river conditions.

Comments Relating to 33 CFR 165.810(f)

    The remaining eight comments addressed paragraph (f)(3)(iii) of the 
interim rule. Seven of the eight comments proposed that the ``Manual 
Mode'' provision should be removed. One comment in particular stressed 
that the proposed rule--as written--would detrimentally affect the 
safety of a particular company's operation. It stated that the proposed 
33 CFR 165.810 (f)(3)(iii), which requires ``[a]utomatic or load 
limiting main propulsion plant throttle systems [to be] operated in the 
manual mode with engines available to immediately answer maneuvering 
commands,'' will reduce the level of safety presently maintained by the 
company's vessels. It explained that the company's vessels now use 
engine control systems designed to be operated from the bridge. The 
comment also indicated that the control systems could override any of 
the automatic-stop or load-limiting functions from the bridge, the 
engine-control room, or the emergency-maneuvering platform on the 
engine side. Essentially, this comment contended that the company's 
vessels have the full range of engine speed from all stations. The 
comment further noted that requiring operation of the engine-control 
system in the manual mode from the engine-control room removed one 
engineer from emergency response and that maneuvering in the manual 
mode put one more human element into the engine-control system. The 
comment also stated that the company has safety-management practices in 
place that address the concerns expressed in proposed 33 CFR 
165.810(f)(3)(iii). Lastly, this comment recommended that that rule be 
replaced with 33 CFR 164.13(b), which would apply to all vessels. This 
rule requires that ``[e]ach tanker must have an engineering watch 
capable of monitoring the propulsion system, communicating with the 
bridge, and implementing manual control measures immediately when 
necessary. The watch must be physically present in the machinery spaces 
or in the main control space and must consist of at least a licensed 
engineer.''

Discussion of Change to ``Manual Mode'' Provision

    The Coast Guard agrees with that portion of the comment that 
pertains to the concerns that 33 CFR 165.810(f)(3)(iii) could impair 
the safety of vessels. It is possible that different engineroom 
configurations could cause confusion as to what precisely ``manual 
mode'' entails. For example, one master could interpret manual mode as 
requiring operation of the main engine from the engine-side throttle 
control, while another could interpret it as allowing engineroom-watch 
personnel to operate the main engine from the control booth. This 
confusion, and the possibility of automatic control systems being 
placed in jeopardy if main-propulsion throttle-system computer programs 
are deactivated or placed in a manual override mode in order to achieve 
a ``manual mode'' state, warrants further study by the Coast Guard in 
conjunction with industry. Therefore, the language contained in 33 CFR 
165.810(f)(3)(iii) that required ``[a]utomatic or load limiting main 
propulsion plant throttle systems [to be] operated in the manual mode 
with engines available to immediately answer maneuvering commands,'' is 
changed in this rule. Accordingly, 33 CFR 165.810(f)(3)(iii) will now 
require that main propulsion machinery be available to immediately 
respond to the full range of maneuvering commands, and that any load-
limiting programs or automatic acceleration-limiting programs that 
would limit the speed of response to engine orders beyond that needed 
to prevent immediate damage to the propulsion machinery be capable of 
being overridden immediately.

Discussion of Change to Engineroom Manning

    This final rule, like its predecessors, will require that the 
engineroom be manned at all times while the vessel is under way in the 
RNA. This manning requirement significantly increases safety by placing 
qualified eyes and ears in close proximity to the detailed alarms and 
indicators, the operating machinery, and the machinery controls. This 
rule does tie at least one engineering watchstander to the engineroom 
for watch responsibilities, limiting that engineer's availability for 
response to casualties elsewhere. However, the Coast Guard believes the 
presence of a licensed engineer in the engineroom, capable of immediate 
communications with the bridge, is essential to the safety of the 
vessel and the port. For clarity, 33 CFR 165.810(f)(1) is changed to 
read: ``* * * each vessel must have an engineering watch capable of 
monitoring the propulsion system, communicating with the bridge, and 
implementing manual-control measures immediately when necessary. The 
watch must be physically present in the machinery spaces or in the 
machinery-control spaces and must consist of at least a licensed 
engineer.''
    The Coast Guard considers this change to Sec. 165.810(f)(1) to be 
within the scope of the language contained in the interim rule for this 
same section. The requirement for the physical presence of a licensed 
engineer in the machinery spaces or machinery control spaces is a 
logical outgrowth of the interim rule's requirement that the 
``engineroom shall be manned at all times.'' Moreover, the existing 
practice in the RNA for self-propelled vessels of 1,600 gross tons or 
greater is to ``man'' the engineroom at all times with a licensed 
engineer. The use of a licensed engineer also adheres to the 
requirements established under Standard of Training and Certification 
of Watchstanding (STCW). However, since this change to 
Sec. 165.810(f)(1) employs terms different from those contained in the 
interim rule, the Coast Guard will accept comments limited to this 
particular section of the final rule. If the Coast Guard receives 
comments that indicate there is a significant impact due to the 
difference between what was published in the interim rule and what is 
established in the final rule, it will open an additional comment 
period for Sec. 165.810(f)(1) only.

Discussion Limiting Rule to Deep-Draft Vessels

    The eighth comment noted that the proposed rule, as written, would 
force towboats and tugboats to comply with the same operational 
requirements that apply to deep-draft vessels even though the 
requirements are ill-suited for towing. It noted that the language in 
the proposed rule does not take into account a recent change to 33 CFR 
Part 164. In the past, Part 164 applied only to self-propelled vessels 
of 1,600 or more gross tons. However, the Final Rule on Navigation 
Safety Equipment for Towing Vessels, published in the July 3, 1996 (61 
FR 35064), amended part 164 to include ``towing vessels of 12 meters or 
more in length.'' As a result of this change, the proposed rule would 
have the unintended result of requiring towboats and tugboats to comply 
with requirements that do not apply to their mode of operation. The 
Coast Guard agrees with this comment. The intent of the proposed rule 
was that it applies only to vessels of 1,600 gross tons or greater, not 
to towboats or tugboats. The final rule has been amended to eliminate 
this unintended result.

Regulatory Evaluation

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and does not

[[Page 18813]]

require an assessment of potential cost and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not significant under the 
regulatory policies and procedures of the Department of Transportation 
(DOT) (44 FR 11040; February 26, 1997). The Coast Guard expects the 
economic impact of this rule to be so minimal that full Regulatory 
Evaluation under paragraph 10e of the regulatory policies and 
procedures of DOT is unnecessary. The Coast Guard expects this because 
it did not receive any comments on the expense of implementing this 
rule. This rule does not require that additional personnel are required 
aboard each vessel; rather, it requires existing watchstanding 
personnel to be immediately available to respond to vessel emergencies. 
This rule establishes additional requirements in order to enhance 
vessel safety and better protect property within the RNA. This rule did 
impose additional costs, the Coast Guard believes they would be far 
outweighed by the safety benefits accrued from the rule. The prevention 
of another M/V BRIGHT FIELD-type allision would save shoreside 
businesses, maritime users, and the public in general tens of millions 
of dollars in potential property damage and personal injury.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard considers the economic impact on small entities of each 
rule for which a general notice of proposed rulemaking is required. 
``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. Because this final rule affects deep-
draft vessels under way and passenger vessels when passengers are 
onboard, and because a ferryboat or small passenger vessel may monitor 
river activities using a portable radio from a vantage point other than 
the pilothouse, the Coast Guard's position is that this rule will not 
have a significant economic impact on a substantial number of small 
entities.
    Therefore, the Coast Guard certifies under section 605(b) of the 
Regulatory Flexibility Act (5 U.S.C. 602 et seq.) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. If, however, you think that your business or organization 
qualifies as a small entity and that this rule will have a significant 
economic impact on your business or organization, please submit a 
comment (see ADDRESSES) explaining why you think it qualifies and in 
what way and to what degree this rule will economically affect it.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
wants to assist small entities in understanding this final rule so that 
they can better evaluate its effects on them and participate in the 
rulemaking process. If your small business or organization is affected 
by this rule and you have questions concerning its provisions or 
options for compliance, please contact Mr. M.M. Ledet, Vessel Traffic 
Management Specialist, at the Eighth Coast Guard District, Marine 
Safety Division, new Orleans, LA, or by telephone at (504) 589-4686, 
for assistance.

Collection of Information

    This final rule does not provide for a collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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.

Environment

    The Coast Guard considered the environmental impact of this final 
rule and concluded that under figure 2-1, paragraph (34)(g) 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'' is available 
in the docket for inspection or copying where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (waters), Reporting and 
recordkeeping requirements, Safety measures, and Waterways.

    In consideration of the foregoing, the Coast Guard amends part 165 
of Title 33, Code of Federal Regulations, to read 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), 
6.04-1, 6.04-6, and 160.5; 46 CFR 1.46.

    2. In Sec.  165.810, revise paragraphs (e) and (f) to read as 
follows:


Sec. 165.810  Mississippi River, LA--regulated navigation area.

* * * * *
    (e) Watch requirements for anchored and moored passenger vessels.
    (1) Passenger vessels. Except as provided in paragraph (e)(2) of 
this section, each passenger vessel with one or more passengers on 
board, must--
    (i) Keep a continuously manned pilothouse; and
    (ii) Monitor river activities and marine VHF, emergency and working 
frequencies of the port, so as to be immediately available to take 
necessary action to protect the vessel, crew, and passengers if an 
emergency radio broadcast, danger signal, or visual or other indication 
of a problem is received or detected.
    (2) Each ferryboat, and each small passenger vessel to which 46 CFR 
175.110 applies, may monitor river activities using a portable radio 
from a vantage point other than the pilothouse.
    (f) Each self-propelled vessel of 1,600 or more gross tons subject 
to 33 CFR part 164 shall also comply with the following:
    (1) While under way in the RNA, each vessel must have an 
engineering watch capable of monitoring the propulsion system, 
communicating with the bridge, and implementing manual-control measures 
immediately when necessary. The watch must be physically present in the 
machinery spaces or in the machinery-control spaces and must consist of 
at least a licensed engineer.
    (2) Before embarking a pilot when entering or getting under way in 
the RNA, the master of each vessel shall ensure that the vessel is in 
compliance with 33 CFR part 164.
    (3) The master shall ensure that the chief engineer has certified 
that the following additional operating conditions will be satisfied so 
long as the vessel is under way within the RNA:
    (i) The main propulsion plant is in all respects ready for 
operations including the main-propulsion air-start systems, fuel 
systems, lubricating systems, cooling systems, and automation systems;
    (ii) Cooling, lubricating, and fuel-oil systems are at proper 
operating temperatures;
    (iii) Main propulsion machinery is available to immediately respond 
to the full range of maneuvering commands any load-limiting programs or 
automatic acceleration-limiting programs that

[[Page 18814]]

would limit the speed of response to engine orders beyond that needed 
to prevent immediate damage to the propulsion machinery are capable of 
being overridden immediately.
    (iv) Main-propulsion standby systems are ready to be immediately 
placed in service.

    Dated: March 22, 1999.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 99-9568 Filed 4-15-99; 8:45 am]
BILLING CODE 4910-15-M