00-8659. Anchorage Ground; Safety Zone; Speed Limit; Tongass Narrows and Ketchikan, AK

AGENCY:

Coast Guard, DOT.

ACTION:

Interim rule; request for comments.

SUMMARY:

The Coast Guard is revising its 1999 interim rule on the Tongass Narrows seven-knot speed limit and is requesting additional public comment before finalizing the rule. Numerous public comments received during 1999 criticized the speed limit exemption applicable to “non-commercial, open skiffs of less than 20 feet in length” as too restrictive. The Coast Guard is revising the exemption to include all small vessels of 23 feet or less, registered length. This change allows an increased number of small vessels that create little wake to transit crowded areas of Tongass Narrows more quickly, thereby relieving congestion.

DATES:

The interim rule becomes effective May 8, 2000. Comments regarding this interim rule must be received by October 31, 2000.

A public hearing will be held on August 19, 2000 at 7 p.m. AST.

ADDRESSES:

You may mail comments to Commander (m), Seventeenth Coast Guard District, Federal Building, 709 West 9th Street, seventh floor, room 753, Juneau, Alaska, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is 907-463-2187. The Seventeenth Coast Guard District, Marine Safety Division, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of the docket and are available for inspection or copying at room 753 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The public hearing will be held at the Ted Ferry Civic Center, 888 Venetia Avenue, Ketchikan, Alaska.

FOR FURTHER INFORMATION CONTACT:

For information concerning this document, call the Supervisor, U.S. Coast Guard Marine Safety Detachment, Ketchikan, Alaska, telephone [phone].

SUPPLEMENTARY INFORMATION:

 

Request for Comments

The Coast Guard encourages you to participate in this rulemaking by submitting written data, views, or arguments. Persons submitting comments should include their names and addresses, identify this rulemaking (CGD17-99-002) and the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and attachments in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you want acknowledgment of receipt of your comments, you should enclose a stamped, self-addressed postcard or envelope.

The Coast Guard will consider all comments received during the comment period. It may change this interim rule in view of the comments.

The Coast Guard has scheduled a public hearing for 7 p.m. (AST), August 19, 2000, at the Ted Ferry Civic Center, 888 Venetia Avenue, Ketchikan, Alaska.

Persons may request an additional public hearing by writing to Commander (m), Seventeenth Coast Guard District at the address under ADDRESSES. The request should include the reasons why an additional hearing would be beneficial. If it determines that the opportunity for additional oral presentations will aid this rulemaking, the Coast Guard will hold an additional public hearing at a time and place announced by later notice in the Federal Register.

Regulatory History

On March 25, 1999, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) entitled “Anchorage Ground, Safety Zone, Speed Limit, Tongass Narrows and Ketchikan, AK” in the Federal Register (64 FR 14414).

On June 1, 1999 an interim rule was published entitled “Anchorage Ground, Safety Zone, Speed Limit, Tongass Narrows and Ketchikan, AK” in the Federal Register (64 FR 29554). A correction was issued on June 15, 1999 in the Federal Register (64 FR 32103).

Background and Purpose

The interim rule published in 1999 revised the safety zone in Ketchikan Harbor as well as the 7-knot speed limit in Tongass Narrows. It redesignated the safety zone in Ketchikan Harbor as an anchorage ground and required transiting vessels, other than those engaged in anchoring evolutions, to proceed through the anchorage by the most direct route without delay or sudden course changes.

Discussion of Comments and Changes

The Coast Guard received comments from 21 persons regarding the 1999 interim rule. The comments included oral comments made at the August 27th, 1999, public meeting and four letters. No comments were received concerning the anchorage area and this portion of the interim rule remains unchanged. Numerous comments criticized the speed limit exemption for being unnecessarily restrictive. Responses to these comments on the 1999 interim rule are discussed in the following paragraphs.

The most frequent comments addressed the exemption for “non-commercial open skiffs”. Of the 21 persons that commented on the 1999 interim rule (several persons commented on multiple aspects), 10 commented on this exemption, stating that the term “non-commercial, open skiff” created confusion as to when a vessel was considered “open” vice enclosed. The Coast Guard agrees and the term “non-commercial, open skiff” has been removed.

Nine comments were received concerning the vessel length exemption from the 7-knot speed limit based on vessel length of less than 20 feet. Seven of the comments favored increasing the size of vessels exempted to 26 feet and one favored increasing the size to 25 feet. Two comments favored keeping the size of vessel exempted from the 7-knot speed limit at 20 feet or less. Additionally, five comments favored an exemption for non-displacement hull vessels.

The Coast Guard agrees that the 20-foot vessel length exemption can be increased without adversely affecting the safety of the waterway and without causing a significant increase in vessel wakes. However, numerous comments that were received as a result of the notice of proposed rulemaking concerned the impact of any rule that split the charter fishing vessel fleet. Commenters were concerned that such a split would provide an unfair economic advantage to certain portions of the charter fishing vessel fleet.

According to data obtained by the Coast Guard from the State of Alaska Commercial Fisheries Entry Commission, there are 167 charter vessels that routinely operate in and around Tongass Narrows. This data, which is depicted in the following table, indicates:

Table 1.—Numbers of Charter Vessels That Routinely Operate on Tongass Narrows

Size of charter vessels	Number of vessels	Percent of total number
≤20 feet	15	9
21-23 feet	12	7.2
24-25 feet	18	10.8
≥26 feet	122	73
Note:This table reflects the adjusted number of charter vessels that are registered as operating on Tongass Narrows. The numbers have been adjusted to remove those vessels that are homeported in areas other than Ketchikan or Metlakatla or that are located at outlying lodges and could not reasonably be expected to participate in the daily charters out of Tongass Narrows (i.e. vessels homeported in Craig, AK or operating out of Yes Bay Lodge, etc.)

that the length limit for vessels exempted from the seven knot speed limit can be set at 23 feet with the expectation that any economic impacts to the charter fleet would be minimal due to the small number of additional (12) charter vessels exempted from this regulation.

The Coast Guard disagrees with the five comments favoring exemption for planing hull vessels from the seven-knot speed limit. An exemption based on hull type would be very difficult to enforce due to the variety of hull types and nomenclature and possible confusion within the maritime community. For this reason, an exemption based on hull type will not be used.

Three persons commented on the southern boundaries of the seven-knot speed limit. One comment stated that the eastern channel boundary should be extended to the south to the Saxman City breakwater. Two persons commented that the western channel boundary should be moved to the south, away from the cable crossing area.

The Coast Guard disagrees that the eastern channel boundary should be extended. The eastern channel boundary was moved north in the 1999 interim rule in an effort to minimize the size of the seven-knot zone without increasing the impacts caused by vessel wakes to private property. Vessel transit time for vessels using the east channel has been reduced and there have been no reports of wake damage to private property located along the waterway in the east channel. Therefore the eastern channel boundary remains unchanged.

One comment noted that the regulatory marker in the western channel should be located outside the cable crossing area. The published position of the western channel regulatory marker is outside of the charted cable crossing area. The buoy tender that services this buoy has been asked to check the actual location of this regulatory marker.

Two comments were received that favored extending the northern boundary of the seven-knot speed zone northward to Channel Island as a way to control wake damage to private and commercial property caused by large vessels transiting this area. The Coast Guard disagrees that the boundary should be extended any further than Tongass Narrows Buoy 9. The overwhelming majority of 129 comments received in 1998 favored a slight extension of the 7-knot speed limit zone but these comments did not support extending the zone as far north as Channel Island. In light of all comments received, the Coast Guard believes that the present northerly boundary of the 7-knot speed limit zone, located at Tongass Narrows Buoy 9, is appropriate and no change is made.

Two comments were received on making the speed limit seasonal to align with the summer tourist season. One facility operator stated that if the rule were made seasonal, it would increase the risk of a large wake parting a line on an oil barge during transfer operations, thereby potentially increasing the chances of an oil spill. During the entire rule making process, the majority of the comments favored the existence of the year round 7-knot rule. The consensus expressed was that if the 7-knot speed limit were seasonal, the risk on the waterway would not be reduced in the off months and the amount of wake damage to private and commercial property on Tongass Narrows would most likely increase. The Coast Guard agrees that the rule should apply year around and no change is made.

One comment favored the creation of a high-speed traffic corridor through the middle of the waterway. Other commenters felt that creating a high-speed corridor would unreasonably increase the risk to vessels operating on Tongass Narrows. This proposal is not adopted.

Discussion of the Change to the Interim Rule

Based on all the comments, we are not finalizing the 1999 interim rule at this time. Instead, we are changing one provision of that rule (33 CFR 162.240(b)) and are providing an additional opportunity for comment. Section 110.231 of Title 33 CFR is not being changed and continues as an interim rule provision. By exempting “vessels of 23 feet registered length or less”, the traffic congestion in the affected areas of Tongass Narrows should be eased and the safety of the small vessel operators enhanced. With the exemption for these small vessels, they will be able to depart from, or transit through the congested areas more quickly. This in turn should ease congestion and reduce navigational conflicts that have arisen between slow moving small boats and cruise ships and other large waterway users and will allow them to spend less time on the water during periods of inclement weather. Large wakes should not become a problem as the exemption is still limited to smaller vessels and because Tongass Narrows regularly experiences substantial wave action that is equivalent to the wake from these smaller vessels. The impacts to the charter fleet are considered minimal because the revised interim rule exempts only 12 of 152 charter vessels that are over 20 feet in length. The revised interim rule retains the 7-knot speed limit for all other vessels except floatplanes and public law enforcement and emergency response vessels.

Regulatory Evaluation

This interim 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, 1979).

The Coast Guard expects the economic impact of this interim rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This is because the regulation is designed to reduce the impacts of the existing speed limit upon waterway users. With regards to the size of vessel exempted from this 7-knot speed limit, the majority of the comments received recognized the need to control congestion, but objected to an exemption that was limited to “non-commercial open skiffs”. After reviewing the written comments submitted and listening to the oral comments, the Coast Guard concurs and has revised the exemption to read “vessels of 23 feet registered length or less”.

Small Entities

Under the Regulatory Flexibility Act [5 U.S.C. 601-612 et seq.], the Coast Guard considers whether this interim rule will have 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.

The Coast Guard believes there may be some impact to small entities, but that it will be minimal or non-existence, based on the extensive comments received from the charter sport fishing industry and the relevant data (only 12 of 152 charter vessels fall under the more generous exemption). Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) 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 proposed 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 proposed rule will 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 offered to assist small entities in understanding the rule so that they could better evaluate its effect on them and participate in the rulemaking process.

Collection of Information

This interim rule calls for no new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.].

Federalism

The Coast Guard has analyzed this interim rule under the principles and criteria contained in E.O. 12612 and has determined that this interim rule does not have sufficient implications for federalism to warrant the preparation of a Federalism Assessment.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.) governs the issuance of Federal regulations that require unfunded government mandates. An unfunded mandate is a regulation 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 unfunded mandate costs. This rule will not impose an unfunded mandate.

Taking of Private Property

This rule will 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 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 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

The Coast Guard considered the environmental impact of this interim rule and concluded that under figure 2-1, paragraph (34)(g) of COMDTINST M18475.1C, this interim rule is categorically excluded from further environmental documentation because it establishes a regulated navigation area. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 162

• Navigation (water)
• Waterways

Regulation

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 162 as follows:

PART 162—[AMENDED]

1. The authority citation for Part 162 continues to read as follows:

Authority: 33 U.S.C. 1231; 49 CFR 1.46.

2. Revise § 162.240 (b) to read as follows:

§ 162.240

Tongass Narrows, Alaska; navigation.

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(b) No vessel, except for public law enforcement and emergency response vessels, floatplanes during landings and take-offs, and vessels of 23 feet registered length or less, shall exceed a speed of 7 knots in the region of Tongass Narrows bounded to the north by Tongass Narrows Buoy 9 and to the south by Tongass Narrows East Channel Regulatory marker at position 55° 19′ 22.0″ N, 131° 36′ 40.5″ W and Tongass Narrows West Channel Regulatory marker at position 55° 19′ 28.5″ N, 131° 39′ 09.7″ W, respectively.

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Dated: March 31, 2000.

T.J. Barrett,

Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard District.