[Federal Register Volume 65, Number 68 (Friday, April 7, 2000)]
[Rules and Regulations]
[Pages 18242-18245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8659]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 162

[CGD17-99-002]
RIN 2115-AF81


Anchorage Ground; Safety Zone; Speed Limit; Tongass Narrows and 
Ketchikan, AK

AGENCY: Coast Guard, DOT.

ACTION: Interim rule; request for comments.

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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

[[Page 18243]]

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 907-225-4496.

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 8\1/2\ 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
------------------------------------------------------------------------
                                                              Percent of
             Size of charter vessels               Number of     total
                                                     vessels    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

[[Page 18244]]

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.

[[Page 18245]]

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531et 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 Sec. 162.240 (b) to read as follows:


Sec. 162.240  Tongass Narrows, Alaska; navigation.

* * * * *
    (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 deg. 19' 22.0" N, 131 deg. 36' 40.5" W 
and Tongass Narrows West Channel Regulatory marker at position 55 deg. 
19' 28.5" N, 131 deg. 39' 09.7" W, respectively.
* * * * *

    Dated: March 31, 2000.
T.J. Barrett,
Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard District.
[FR Doc. 00-8659 Filed 4-6-00; 8:45 am]
BILLING CODE 4910-15-U