[Federal Register Volume 65, Number 156 (Friday, August 11, 2000)]
[Notices]
[Pages 49284-49285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20449]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

[USCG 2000-7742]


Interpretation of `` Intra-Port Transit'' in the States of New 
York and New Jersey

AGENCY: Coast Guard, DOT.

ACTION: Notice of interpretation.

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SUMMARY: The Coast Guard is issuing its interpretation of ``intra-port 
transit'' as used respecting the Port of New York. The Coast Guard 
defines the term as it has always defined it: to mean any transit 
between any two points within any of the areas designated in the rule. 
It is issuing this interpretation to ensure that every self-propelled 
vessel engaged in foreign commerce employs a pilot holding a properly 
endorsed Federal First Class Pilot's license while the vessel makes an 
``intra-port transit'' on waters designated in that rule.

DATES: This notice is effective on August 11, 2000.

FOR FURTHER INFORMATION CONTACT: For questions on this notice, contact 
Lieutenant Alan Blume, Waterway Safety Program Manager, Office of 
Waterways Management Policy and Planning, U.S. Coast Guard 
Headquarters, telephone 202-267-0550, e-mail [email protected]. For 
questions on viewing the docket, call Ms. Dorothy Beard, Chief of 
Dockets, Department of Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory Background

    On May 10, 1995, the Coast Guard published in the Federal Register 
[60 FR 24793] a Final Rule entitled: ``Federal Pilotage * * * for 
Foreign Trade Vessels.'' This rule designated areas in the States of 
New York and New Jersey where every self-propelled vessel engaged in 
foreign commerce must use a pilot holding a properly endorsed Federal 
First Class Pilot's license while making an ``intra-port transit.'' The 
purpose was to enhance the safety of vessels performing difficult 
mooring maneuvers, or transiting congested or restricted waters, by 
prescribing rules for pilotage in waters not subject to States' 
pilotage requirements.

Discussion

    The pilotage system of the United States is in fact parallel 
systems of complementary Federal and State laws on pilotage. Since 1789 
the States have had primary responsibility for regulating the pilotage 
of foreign-flag and U.S.-flag vessels sailing under register (foreign-
trade vessels). [See 46 U.S.C. 8501(a).] Governance of the pilotage of 
coastwise seagoing vessels is a Federal responsibility. [See 46 U.S.C. 
8502(a).] The Federal government may regulate pilotage of foreign-trade 
vessels only when a State does not. [See 46 U.S.C. 8503(a).]
    New York and New Jersey do not require State-licensed pilots aboard 
vessels engaged in foreign trade making intra-port transits in New York 
Harbor. The New Jersey statute states:

    All masters of foreign vessels and vessels from a foreign port, 
and all vessels sailing under register, bound in or over the bar of 
Sandy Hook * * * shall take a licensed pilot * * * [N.J. Stat. Ann. 
Sec. 12:8-35 (West 1992).]

    The New York statute states:

    Every foreign vessel and every American vessel under register 
entering or departing from the Port of New York by the way of Sandy 
Hook or by the way of Sands Point or Execution Rocks, shall take a 
Sandy Hook pilot licensed under the authority of this article or the 
laws of the State of New Jersey or a person heretofore licensed as a 
Hell Gate pilot. [N.Y. Nav. Law Sec. 88(1) (McKinney 1993).]

These statutes, according to the courts, mean that the States require 
pilots only when foreign-trade vessels are entering, or departing from, 
New York Harbor. [See Baeszler v. Mobile Oil Corp., 375 F.Supp. 1220 
(1973).] Neither New York nor New Jersey requires State-licensed pilots 
for intra-port transits. [Id.] The court in Baeszler recognized that a 
``gap'' existed between Federal and State law insofar as neither law 
mandated pilotage for foreign-trade vessels making intra-port transits 
within New York Harbor. [Id.]
    Precisely in response to this gap, the Coast Guard implemented 46 
CFR 15.1030. That rule remains effective until the States having 
jurisdiction, New York and New Jersey, implement superseding 
requirements for State-licensed pilots and notify the Coast Guard of 
that fact. [See 46 U.S.C. 8503(b).] When the Coast Guard implemented 46 
CFR 15.1030, it considered implications for federalism and determined 
that there was no conflict between State and Federal law. The Notice of 
Proposed Rulemaking (NPRM) had stated: ``Since this [rule aims] 
primarily at requiring the use of Federal pilots in instances where 
State pilots are not required, the Coast Guard does not believe that 
the preparation of a Federalism Assessment is warranted.'' [58 FR 
36917] The NPRM had also stated: ``This rule would not [impair] 
existing [S]tate laws.'' [58 FR 36917] A review of the NPRM and the 
Final Rule [60 FR 24793] makes clear that the purpose of the rule is to 
fill the gap.
    46 C.F.R. 15.1001 requires a pilot, who holds a Federal First Class 
Pilot's license, to be on board a foreign-trade vessel when transiting 
waters identified in area-specific rules--such as 46 CFR 15.1030, which 
applies to New York and New Jersey. The latter rule covers

    The following U.S. navigable waters located within the States of 
New York and New Jersey when the vessel is making an intra-port 
transit, 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

[[Page 49285]]

anchorage, within the following listed areas * * *

It then specifies nine ``operating areas,'' or bodies of water, within 
the two States. This language is clear on its face. A plain reading of 
``intra-port transit'' includes any transit between any two points 
within any of these nine areas. Although the rule furnishes some 
examples of intra-port transits, the examples, being just that, are not 
exhaustive; the language ``to include, but not limited to'' sees to 
that. This language supports a comprehensive interpretation of what 
constitutes an ``intra-port transit.'' On the basis of this 
interpretation the Coast Guard has understood ``intra-port transit'' as 
used in 46 CFR 15.1030 to mean any transit between any two points 
within any of these nine areas.
    Nothing in 46 CFR 15.1001 and 15.1030 precludes the Coast Guard 
from exercising jurisdiction over the holder of a Federal First Class 
Pilot's license acting under the authority of that license simply 
because a foreign-trade vessel is either inbound from, or outbound to, 
sea. ``[I]ntra-port transit'' as used in 46 CFR 15.1030 includes the 
movement of a foreign-trade vessel inbound from sea from the point 
where a State-licensed pilot ceases providing pilotage to another point 
within the identified areas (for instance a dock or anchorage). 
Likewise, ``intra-port transit'' as used there includes the movement of 
a foreign-trade vessel outbound to sea from a point within the 
identified areas (for instance a dock or anchorage) to the point where 
a State-licensed pilot begins providing pilotage.

    Dated: August 4, 2000.
R.G. North,
Assistant Commandant for Marine Safety and Environmental Protection.
[FR Doc. 00-20449 Filed 8-10-00; 8:45 am]
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