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Notice

Interpretation of “ Intra-Port Transit” in the States of New York and New Jersey

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Information about this document as published in the Federal Register.

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AGENCY:

Coast Guard, DOT.

ACTION:

Notice of interpretation.

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.

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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 ablume@comdt.uscg.mil. For questions on viewing the docket, call Ms. Dorothy Beard, Chief of Dockets, Department of Transportation, telephone 202-366-9329.

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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. § 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 § 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 Start Printed Page 49285anchorage, 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.

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Dated: August 4, 2000.

R.G. North,

Assistant Commandant for Marine Safety and Environmental Protection.

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[FR Doc. 00-20449 Filed 8-10-00; 8:45 am]

BILLING CODE 4910-15-P