[Federal Register Volume 64, Number 203 (Thursday, October 21, 1999)]
[Proposed Rules]
[Pages 56720-56723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27552]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 15

[USCG-1999-6097]
RIN 2115-AF90


Federal Pilotage for Foreign-Trade Vessels in Maryland

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to require that vessels engaged in 
foreign trade, under way on the navigable waterways within the State of 
Maryland, be under the direction and control of Federally-licensed 
pilots when not under the control and direction of State pilots. This 
measure is necessary to ensure that vessels are navigated by competent, 
qualified persons, knowledgeable in the local area and accountable to 
either the State or the Coast Guard. This measure would promote 
navigational safety by increasing the level of accountability and 
reducing the risk of marine casualties in the waters of Maryland.

DATES: Comments and related material must reach the Docket Management 
Facility on or before December 20, 1999.


[[Page 56721]]


ADDRESSES: To make sure your comments and related material do not enter 
the docket more than once, please submit them (referred to USCG 1999-
6097) by only one of the following means:
    (1) By mail to the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 
20590-0001.
    (2) By delivery to room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (3) By fax to the Docket Management Facility at 202-493-2251.
    (4) Electronically through the Web Site for the Docket Management 
System at http://dms.dot.gov.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying at room PL-401 on the Plaza level of the Nassif Building, 400 
Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. You may also find this docket 
on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this proposed rule, 
contact Mr. Timothy Farley, Office of Investigations and Analysis (G-
MOA), Coast Guard, 202-267-1414; e-mail T[email protected], or 
Lieutenant Michael Dreier, Office of Standards, Evaluation and 
Development (G-MSR), phone 202-267-6490; e-mail M[email protected]. 
For questions on viewing or submitting material to the docket, call 
Dorothy Walker, Chief, Dockets, Department of Transportation, telephone 
202-366-9329.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (USCG-1999-
6097), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. You may submit 
your comments and material by mail, delivery, fax, or electronic means 
to the Docket Management Facility at the address under ADDRESSES; but 
please submit your comments and material by only one means. If you 
submit them by mail or delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit them by mail and would like to know they reached 
the Facility, please enclose a self-addressed, stamped postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Background and Purpose

    Under 46 U.S.C. 8503(a) the Secretary of Transportation may require 
a Federally-licensed pilot to be aboard 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 pilot. 46 U.S.C. 8503(b) 
provides that Federal authority to require Federally-licensed pilots on 
vessels engaged in foreign trade terminates when the State having 
jurisdiction establishes a superseding requirement for a State pilot 
and notifies the Secretary (in practice, the Coast Guard) of that fact. 
46 CFR part 15 requires Federal pilots to be aboard vessels engaged in 
foreign trade while operating on certain navigable waters within 
California, Hawaii, Massachusetts, New York and New Jersey, and North 
Carolina. (On October 27, 1998, we issued a final rule [63 FR 57252] 
that requires vessels engaged in foreign trade to have Federal pilots 
aboard when operating in specified waters in North Carolina.)
    Commercial vessels transit the navigable waters of the State of 
Maryland carrying various types of freight, oil, and hazardous 
substances and materials, as well as large quantities of bunkers. Under 
Maryland law [General Statutes of Maryland, Sec. 11-501], every foreign 
vessel and every domestic vessel sailing under register must use a 
State-licensed pilot, except that the vessel need not use a State-
licensed pilot if it is under the control of a docking master while 
maneuvering with tug assistance during berthing or unberthing, or 
shifting within a port. Maryland does not license, establish 
qualifications for, or regulate the competency of, these docking 
masters. Although all docking masters now operating in the Port of 
Baltimore already hold valid Federal pilots' licenses (or pilotage 
endorsements on Federal licenses), holding these is voluntary and is as 
yet neither a State nor a Federal requirement. Anyone may serve as 
docking master, and, by law, no one need demonstrate proficiency or 
competency to do so. This problem is similar to the one that prevailed 
in New York Harbor until the adoption in 1995 of 46 CFR 15.1030. 
Docking masters, many of whom held valid Federal pilots' licenses, 
provided pilotage. 46 U.S.C. 7703 establishes that a mariner's license 
is not subject to suspension or revocation unless the mariner is acting 
under it. (A docking master is acting under his or her Federal pilot's 
license when directing a tug assisting a ship. The problem has been 
that he or she may not be acting under it when directing the ship 
itself, either in the absence of a tug or without reliance on one.) 
Unless the docking master 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. This rule would help ensure that a person 
providing pilotage is operating under the authority of either a valid 
State or Federal pilot's license, and so would ensure adequate 
accountability. It would add a new section to Subpart I of 46 CFR Part 
15 to require that a foreign-trade vessel be under the direction and 
control of a Federally-licensed pilot when operating in designated 
waters of Baltimore Harbor from the Key Bridge to moor, except when 
under the direction and control of a State-licensed pilot operating 
under the authority of his or her State license.
    We have determined that it is unsafe for certain vessels to 
undertake intra-port transits, or otherwise navigate in the waters of 
the State of Maryland, except when under the direction and control of 
pilots accountable to the State or the Coast Guard. Operating these 
vessels with docking masters who are either not licensed (or endorsed) 
as Federal or State pilots or not operating under the authority of 
pilots' licenses presents an unacceptable risk to human life, property, 
and the environment. Therefore, we have determined that requiring 
persons to serve under the authority of Federal first-class pilots' 
licenses (or endorsements), and so be accountable for their actions and

[[Page 56722]]

competency, would increase maritime safety.
    Currently, to obtain a Federal first-class pilot's license (or 
endorsement), a person must pass a comprehensive examination, which 
includes performing a chart sketch of the area, demonstrating 
proficiency in the use of navigational aids, and maneuvering and 
handling ships in high winds, tides, and currents. Further, a person 
must complete a specific number of transits in the area and demonstrate 
specialized knowledge of the waters for which the Coast Guard issues 
the license (or endorsement). Therefore, we propose to require Federal 
pilots' licenses (or endorsements) for persons acting as docking 
masters on vessels engaged in foreign trade and operating in the 
navigable waters of the State of Maryland, unless these vessels are 
under the direction and control of State-licensed pilots operating 
under the authority of valid State pilots' licenses.

Discussion of Changes

    This proposed rule would add a new section to 46 CFR part 15, 
subpart I, to require that every vessel engaged in foreign trade and 
operating in the navigable waters of Maryland be under the direction 
and control of a Federally-licensed pilot except when under the 
direction and control of a State-licensed pilot operating under the 
authority of a valid State license.

Regulatory Evaluation

    This proposed 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. 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, l979)). We expect 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.
    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. Although they need not, persons now 
serving as docking masters within the navigable waters of the State of 
Maryland do hold Federal pilots' licenses. Therefore, this rule would 
not impose any immediate costs on those persons. However, persons 
entering this profession in the future would have to hold Federal 
first-class pilots' licenses. Historically, persons filling these 
vacancies have already obtained Federal first-class pilots' licenses 
and necessary endorsements in the normal course of advancement in their 
profession. Nevertheless, this rule would require an initial expense to 
obtain the license, in addition to a yearly physical and the five-year 
renewal fees. These costs should be insignificant as those persons 
currently acting as docking masters already hold, and those likely to 
enter this profession would already hold, the required license. This 
rule would promote responsibility and safety by requiring a Federal 
first-class pilot, where the State requires no pilot. We believe 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), we 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises 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.
    We expect that this rule would have minimal economic impact on 
small entities. Vessels affected by this rule probably are not owned or 
operated by small entities. The pilots themselves do not qualify as 
small entities. However, State pilots' associations may qualify as 
small entities. We understand that those persons now providing pilotage 
to foreign-trade vessels calling at ports in Maryland already hold 
Federal first-class pilots' licenses (or endorsements) for those 
waters. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule would not have a significant economic impact on a substantial 
number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule would have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain why you think it 
qualifies and how and to what degree this rule would economically 
affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult Mr. Timothy Farley, Office of 
Investigations and Analysis (G-MOA), Coast Guard, 202-267-1414; e-mail 
T[email protected].
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
rules to the Small Business and Agriculture Regulatory Enforcement 
Ombudsman and the Regional Small Business Regulatory Fairness Boards. 
The Ombudsman evaluates these actions annually and rates each agency's 
responsiveness to small business. If you wish to comment on actions by 
employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].

Federalism

    We have analyzed this proposed rule under E.O. 12612 and have 
determined that this rule does not have sufficient implications for 
federalism to warrant the preparation of a Federalism Assessment.
    Congress, under 46 U.S.C. 8503(a), specifically authorizes the 
Federal Government to require a Federally-licensed pilot where State 
law requires no licensed pilot. Maryland permits docking masters, not 
licensed by the State, to serve as pilots on certain waters within 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 rule aims primarily at requiring Federal pilots to 
supplement State pilots, we do not believe that the preparation of a 
Federalism Assessment is warranted. This rule would not impinge upon 
existing State laws. The Federal statute itself lets Maryland preempt 
Federal authority. If Maryland adopted superseding legislation 
requiring foreign and domestic vessels, sailing on registry, to be 
under the direction and control of State-licensed

[[Page 56723]]

pilots, we would withdraw this rule. Still, we specifically seek public 
comment on the implications of this rule for Federalism.

Unfunded Mandates Reform Act and Enhancing the Intergovernmental 
Partnership

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and 
E.O. 12875, Enhancing the Intergovernmental Partnership (58 FR 58093 
(October 28, 1993)) govern the issuance of Federal rules that require 
unfunded mandates. An unfunded mandate is a rule that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those costs. This proposed rule would not impose an unfunded mandate.

Taking of Private Property

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under E.O. 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. This rule is 
not an economically significant rule and does not concern an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Environment

    We considered the environmental impact of this proposed rule and 
concluded that, under figure 2-1, paragraph (34)(a), of Commandant 
Instruction M16475.lC, this rule is categorically excluded from further 
environmental documentation. We have determined that most people now 
providing pilotage to foreign-trade vessels within the navigable waters 
of Maryland would continue to provide it since all pilots already hold 
Federal first-class pilots' licenses for these waters. Therefore, this 
rule would let affected vessels continue to operate according to 
current practices in the industry. We also recognize that this rule may 
minimize the risk of environmental harm that may result from collisions 
and grounding of vessels. Nevertheless, this impact should not be 
significant enough to warrant further documentation. A ``Categorical 
Exclusion Determination'' is available in the docket where indicated 
under ADDRESSES.

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 proposes 
to amend 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. 15.1060 to read as follows:


Sec. 15.1060  Maryland.

    All U.S. navigable waters located within the State of Maryland when 
the vessel is making a transit within a port to include, but not 
limited to, a 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, and the vessel is not under the direction and control of a 
State-licensed Pilot operating under the authority of a valid State 
pilot's license.

    Dated: October 12, 1999.
R.C. North,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.
[FR Doc. 99-27552 Filed 10-20-99; 8:45 am]
BILLING CODE 4910-15-P