AGENCY:

Coast Guard, DHS.

ACTION:

Advance notice of proposed rulemaking.

SUMMARY:

The Coast Guard seeks comments regarding the possible establishment of shipping safety fairways (“fairways”) along the Atlantic Coast of the United States identified in the Atlantic Coast Port Access Route Study. This potential system of fairways is intended to ensure that traditional navigation routes are kept free from obstructions that could impact navigation safety.

DATES:

Comments and related material must be received by the Coast Guard on or before August 18, 2020.

ADDRESSES:

You may submit comments identified by docket number USCG-2019-0279 using the Federal eRulemaking Portal at https://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

For information about this document call or email George Detweiler, Coast Guard; telephone 202-372-1566, email George.H.Detweiler@uscg.mil.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments

II. Abbreviations

III. Background

A. Shipping Safety Fairway

B. Atlantic Coast Port Access Route Study

C. Port Approaches and International Entry and Departure Transit Areas PARS Integral to Efficiency of Possible Atlantic Coast Fairways

IV. Discussion of Action Under Consideration

A. Potential Fairways Identified in the ACPARS

B. Descriptions of Potential Fairways

C. Study of Potential Port Approach Fairways

D. International Entry/Departure Transit Areas

V. Information Requested

I. Public Participation and Request for Comments

The Coast Guard views public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this potential rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit your comments through the Federal eRulemaking Portal at https://www.regulations.gov. If you cannot submit your material by using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this advance notice of proposed rulemaking document (ANPRM) for alternate instructions. Documents mentioned in this ANPRM as being available in the docket, and all public comments, will be available in our online docket at https://www.regulations.gov, and can be viewed by following that website's instructions. Additionally, if you visit the online docket and sign up for email alerts, you will be notified when comments are posted or if a notice of proposed rulemaking is published.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

The Coast Guard does not plan to hold a public meeting, but we will consider doing so if public comments indicate that a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

II. Abbreviations

ACPARS Atlantic Coast Port Access Route Study

AIS Automatic Identification System

BOEM Bureau of Ocean Energy Management

DHS Department of Homeland Security

EEZ Exclusive Economic Zone

FR Federal Register

PARS Port Access Route Study

§ Section

U.S.C. United States Code

UNCLOS United Nations Convention of the Law of the Sea

III. Background

This advanced notice of proposed rulemaking (ANPRM) seeks comments regarding the possible establishment of shipping safety fairways (“fairways”) along the Atlantic Coast of the United States based on navigation safety corridors identified in the Atlantic Coast Port Access Route Study (ACPARS). In this section, we provide background information on fairways, ACPARS, and related port access route studies.

A. Shipping Safety Fairways

Section 70003 of Title 46 United States Code directs the Secretary of the department in which the Coast Guard resides to designate necessary fairways that provide safe access routes for vessels proceeding to and from U.S. ports.^[1] Designation as a fairway keeps an area free of fixed structures. This designation recognizes the generally paramount right of navigation over other uses in the designated areas.^[2] The Coast Guard is coordinating its possible establishment of fairways ^[3] along the Atlantic Coast, as well as complementary port approaches and international entry and departure zones, with the Bureau of Ocean Energy Management (BOEM) to minimize the impact on offshore energy leases.

Under 46 U.S.C. 70003, fairways are designated through federal regulations. Regulations governing fairways in 33 CFR part 166 provide that fixed offshore structures are not permitted within fairways because these structures would jeopardize safe navigation. The Coast Guard may establish, modify, or relocate existing fairways to improve navigation safety or accommodate offshore activities such as mineral exploitation and exploration. 46 U.S.C. 70003(e)(3); 33 CFR 166.110.

Before establishing or adjusting fairways, 46 U.S.C. 70003(c)(1) requires the Coast Guard to study potential traffic density and assess the need for safe access routes for vessels. During this process, the Coast Guard considers the views of the maritime community, environmental groups, and other stakeholders to reconcile the need for safe access routes with reasonable waterway uses. See 46 U.S.C. 70003(c)(3). The Coast Guard attempts to recognize and minimize each identifiable cost, and balance cost impacts against the needs of safe navigation.

B. Atlantic Coast Port Access Route Study

On May 11, 2011, the Coast Guard chartered the ACPARS workgroup to address the potential navigational safety risks associated with offshore developments and to support future marine planning efforts. The workgroup analyzed the entire Atlantic Coast and focused on waters located seaward of existing port approaches within the U.S. Exclusive Economic Zone (EEZ). The Coast Guard used Automatic Identification System (AIS) data and information from shipping organizations to identify traditional navigation routes.

The Coast Guard announced the availability of the final ACPARS report and requested public comment in the Federal Register on March 14, 2016 (81 FR 13307). After considering comments submitted in response to that notice, the Coast Guard determined that the final report was complete as published and announced this finding in the Federal Register on April 5, 2017 (82 FR 16510). The final ACPARS report is available in the docket for this rulemaking, in the docket for the ACPARS itself (docket number USCG-2011-0351), and also at https://www.navcen.uscg.gov/​?pageName=​PARSReports.

The ACPARS workgroup identified navigation safety corridors ^[4] along the Atlantic Coast that have the width necessary for navigation and sufficient buffer areas.^[5] The ACPARS Final Report identified deep draft routes for navigation and recommended that they be given priority consideration over other uses for consistency with the United Nations Convention of the Law of the Sea (UNCLOS).^[6] Article 78 of UNCLOS states that, “[t]he exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention.” ^[7] The ACPARS final report also identified coastal navigation routes and safety corridors of an appropriate width for seagoing tows.^[8] The report recommended that the Coast Guard consider developing the navigation safety corridors it identifies in its Appendix VII—which include ones for deep draft vessels and ones closer to shore for towing vessels—into official shipping safety fairways or other appropriate vessel routing measures.^[9] Analysis of the sea space required for vessels to maneuver led to the development of marine planning guidelines that were included in the ACPARS final report and that the workgroup considered when identifying the navigation safety corridors in its Appendix VII.

C. Port Approaches and International Entry and Departure Transit Areas PARS Integral to Efficiency of Possible Atlantic Coast Fairways

On March 15, 2019, the Coast Guard announced a study of port approaches and international entry and departure areas in the Federal Register (84 FR 9541).^[10] This study will consider access routes from ports along the Atlantic Coast to the navigation safety corridors the ACPARS report recommended that we consider developing as fairways or other appropriate vessel routing measures. The ports to be considered in this study are economically important, support military operations, or have been identified to be strategically critical to national defense. The study will also examine areas associated with customary international trade routes seaward of the navigation safety corridors identified in the ACPARS. The creation of unimpeded transit lanes from the potential fairways outlined in the ACPARS final report to ports, and from those potential fairways to international transit areas, would help ensure the safe and efficient flow of commerce and enhance national security.

Similar to the ACPARS methodology, AIS data and information from shipping organizations will again be used to identify and verify the customary navigation routes that are followed by ships in open-water situations where no obstructions exist. This will allow the Coast Guard to identify areas where structures could jeopardize safe navigation and impede commerce. These studies will provide a mechanism to engage stakeholders with potentially competing uses of the waters of the U.S. EEZ in an effort to reduce impacts to those uses.

IV. Discussion of Action Under Consideration

The Coast Guard is considering establishing fairways, as defined in 33 CFR 166.105, to protect maritime commerce and safe navigation amidst extensive offshore development on the Atlantic Coast.

A. Potential Fairways Identified in the ACPARS

The ACPARS identified nine primary navigation safety corridors that may be suitable for designation as fairways.^[11] Three of these are coastwise primary navigation safety corridors which would most likely be used by smaller and slower moving vessels. Initial evaluations suggest that the highest conflict between transiting vessels and alternative undertakings in offshore regions—such as resource exploration and development, production of renewable energy, environmental preservation and protection, and resource conservation and defense—are likely to occur in these near-coast regions. Six offshore fairways were also recommended in the ACPARS final report. The offshore fairways are most likely to be used by larger and faster-moving deep-draft vessels.

B. Descriptions of Potential Fairways

The nine fairways identified by the ACPARS final report are described as follows, all geographic points are based on North American Datum of 1983: ^[12]

1. The potential St. Lucie to New York Fairway is about 1,350 miles long, approximately 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Miami, FL; Port Everglades, FL; the Port of Virginia; the Port of Baltimore, MD; the Port of Philadelphia, PA; the Port of Wilmington, DE; and the Port of New York and New Jersey. This potential fairway is an area enclosed by rhumb lines joining points at:

2. The potential Delaware Bay Connector Fairway is about 125 miles long, approximately 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Miami, FL; Port Everglades, FL; Port Canaveral, FL; and the Port of Virginia; the Port of Baltimore, MD; the Port of Philadelphia, PA; the Port of Wilmington, DE; and also to the Port of New York and New Jersey, by linking with the St. Lucie to New York Fairway in the vicinity of Cape Henry, VA.^[13] This potential fairway is an area enclosed by rhumb lines joining points at:

3. The potential St. Lucie to Chesapeake Bay Nearshore Fairway is about 1,200 miles long, approximately 5 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Miami, FL; Port Everglades, FL; Port Canaveral, FL; the Port of Jacksonville, FL; Kings Bay, GA; the Port of Brunswick, GA; the Port of Savannah, GA; the Port of Charleston, SC; the Port of Morehead City, NC; the Port of Wilmington, NC; the Port of Virginia,; and the Port of Baltimore, MD. This potential fairway is an area enclosed by rhumb lines joining points at:

4. The potential St. Lucie to Chesapeake Bay Offshore Fairway is about 1,200 miles long, approximately 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Miami, FL; Port Everglades, FL; Port Canaveral, FL; the Port of Jacksonville, FL; Kings Bay, GA; the Port of Brunswick, GA; the Port of Savannah, GA; Charleston, SC; the Port of Morehead City, NC; the Port of Wilmington, NC; and the Port of Virginia. It is located seaward of the St. Lucie to Chesapeake Bay Nearshore Fairway. This potential fairway is an area enclosed by rhumb lines joining points at:

5. The potential Cape Charles to Montauk Point Fairway is about 400 miles long, varies from approximately 5 to 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of New York and New Jersey; the Port of Philadelphia, PA; the Port of Wilmington, DE; and the Port of Baltimore, MD. This potential fairway is an area enclosed by rhumb lines joining points at:

6. The potential Chesapeake Bay to Delaware Bay: Eastern Approach Cutoff Fairway is about 200 miles long, approximately 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Virginia; the Port of Baltimore, MD; the Port of Philadelphia, PA; and the Port of Wilmington, DE. This potential fairway is an area enclosed by rhumb lines joining points at:

7. The potential Off Delaware Bay: Southern Approach Cutoff Fairway is about 20 miles long, approximately 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Miami, FL; Port Everglades, FL; Port Canaveral, FL; and the Port of Virginia; the Port of Baltimore, MD; the Port of Philadelphia, PA; and the Port of Wilmington, DE, by linking with the St. Lucie to New York Fairway in the vicinity of Cape Henlopen, DE.^[17] This potential fairway is an area enclosed by rhumb lines joining points at:

8. The potential Off Delaware Bay: Eastern Approach Cutoff Fairway is about 50 miles long, approximately 10 nautical miles wide, and includes the customary route taken by vessels transiting between the Port of Miami, FL; Port Everglades, FL; Port Canaveral, FL; by linking the St. Lucie to New York Fairway in the vicinity of Cape May, NJ; or the Port of Virginia and the Port of Baltimore, MD; and the Port of Philadelphia, PA; and the Port of Wilmington, DE, by linking with the Chesapeak Bay to Delaware Bay Eastern Approach Cutoff in the vicinity of Cape May.^[18] This potential fairway is an area enclosed by rhumb lines joining points at:

9. The potential Long Island Fairway is about 150 miles long, approximately 5 nautical miles wide, and includes the customary route taken by vessels transiting between the Long Island Sound Eastern Entrances; the Port of Groton, CT; the Port of New Haven Harbor, CT; and the Port of New York and New Jersey. This potential fairway is an area enclosed by rhumb lines joining points at:

You can find three charts depicting and labelling the locations of these potential fairways in the docket. The Northern Area chart illustrates all nine. As numbered in the tables above, the Mid-Atlantic Area chart illustrates potential fairways 1, 2, 3, 4, 5, and 8, and the Southern Area chart illustrates potential fairways 1, 3, and 4. These charts only show the portion of the potential fairway in the area covered by the chart. Additionally, two charts depicting and labelling the locations of overlaps between the proposed fairways and existing BOEM leases are contained in the docket: Chart Showing Overlap of BOEM Maryland Lease OCS-A-0490, and New Jersey Leases OCS-A-0498 and OCS-A-0499; and Chart Showing Overlap of BOEM North Carolina Lease OCS-A 0508.

C. Study of Potential Port Approach Fairways

As announced in the Federal Register on March 15, 2019, the Coast Guard is also conducting Port Access Route Studies in accordance with 46 U.S.C. 70003(c) to determine whether or not fairways should be established or whether other routing measures for existing port approaches would be more appropriate. 84 FR 9541. These port approach fairways would provide access to the potential fairways identified in the ACPARS final report and in this ANPRM, would be important to the safe and efficient movement of ships and cargo, and would be critical to sustaining interstate and international commerce.

Each Coast Guard district commander will study the ports in their district that are economically significant, support military operations, or are critical to national defense. For an example of this multi-Coast Guard District effort, see a recent notice announcing PARS for approaches to the Chesapeake Bay, Virginia (84 FR 65398, November 27, 2019). Results of each PARS will be published separately in the Federal Register by the district commander.

Like the ACPARS, these PARS will use AIS data and information from stakeholders to identify and verify customary navigation routes. Each PARS will identify potential conflicts involving alternative activities in the studied area, such as wind energy generation and offshore mineral exploration and exploitation.

The following 23 U.S. ports are initially under consideration for PARS:

D. International Entry and Departure Transit Areas

We also announced studies related to international entry and departure transit areas seaward of the potential fairways in the U.S. EEZ. 84 FR 9541. International entry and departure transit areas are integral to the safe, efficient, and unimpeded flow of ships. Fairways established based on the studies of international entry and departure transit areas would be used by vessels coming from a foreign port and transiting to a coastwise or offshore fairway or directly to a port approach leading to a U.S. port. It is important that fairways for regions of the U.S. EEZ between principal international ports and the United States are considered to ensure the safe and direct movement of ships and cargo between international origins and destinations. Each route or fairway would be a link in a chain connecting ports in the United States and abroad, and each link should be as robust and effective as the routes identified in the ACPARS.

V. Information Requested

Public participation will help the Coast Guard decide whether to establish coastwise and offshore fairways and, if so, how to balance ship routing with offshore development activities and other uses. The Coast Guard seeks public comments, positive or negative, on the impacts that the nine potential fairways under consideration may have on navigational safety and on other activities in these offshore areas to aid us in developing a proposed rule and the supporting analyses. Where possible and pertinent, please provide sources, citations and references to back up or justify your responses. Also, for all pertinent responses, please provide a detailed explanation of how you arrived at this conclusion and the underlying assessment that supports your conclusion. Finally, for all numerical responses please provide us with sufficient information to recreate your calculations.

We seek public feedback on the following questions:

1. Do the nine potential fairways provide safe and efficient routes for vessels transiting to and from international ports to the United States? Why or why not? If not, what would you recommend instead?

2. Are the ACPARS-potential fairways described in this ANPRM, or similar ones, necessary for ensuring a safe and orderly passage for vessels transiting among U.S. domestic ports of call? Why or why not? Please explain your answer, including your specific comments on how the fairways described in this ANPRM would affect maritime traffic patterns, navigational safety and access to ports.

3. Are there any positive or negative impacts of not establishing the nine fairways noted in this ANPRM? If so, please describe them.

4. If these potential fairways are established, what persons, entities, or organizations would be positively or negatively impacted? In other words, which groups of people, businesses, or industries (maritime and non-maritime) would be positively or negatively impacted by these potential fairways?

5. What other offshore uses may be positively or negatively affected by the potential fairways? Please include specific locations, potential impact, and associated costs or benefits. Please also describe the safety significance of the potential fairways on the activity.

6. Do the nine potential fairways unduly limit offshore development? If so, is there a cost model or structure that should be considered for analysis? What are the limitations of the cost model? If so, why do you believe the proposal would limit offshore development and what specific development would it limit?

7. From an environmental perspective, would the potential fairways described in this ANPRM negatively impact living marine resources? If so, which marine resources would be impacted and how? What measures within the Coast Guard's jurisdiction should be considered to avoid, minimize, or mitigate any such impacts?

8. Beyond the environmental impacts mentioned in question 7, are there any other positive or negative environmental impacts from these potential fairways? If so, please provide detail as to how and what would be impacted. To the degree possible, please provide the data, impact assessments, and other pertinent background information necessary to understand and reproduce your results.

9. What mitigation measures within the Coast Guard's jurisdiction could be used to relieve the economic and safety impacts of the potential fairways on other offshore uses? What are the expected costs and associated benefits of the suggested mitigation measures?

10. Are there additional measures that should be considered to improve safety or relieve an economic burden imposed by these potential fairways? What are the expected costs and associated benefits of the suggested additional measures?

11. Are there other variables that should be considered in developing this system of potential fairways? If so, please indicate particular issues and the specific areas to which they pertain.

13. Besides the Coast Guard's noted intention and purpose of this rulemaking, what positive aspects would this proposal produce for the safety of maritime transportation?

14. Have there been any offshore developments built or installed in the past 10 years that have impacted traffic patterns, navigational safety, or maritime commerce? If so, were the net impacts positive or negative? Please provide a detailed explanation of how you arrived at this conclusion.

15. Please offer any other comments or suggestions that may improve this initiative.

Please submit comments or concerns you may have in accordance with the “Public Participation and Request for Comments” section above.

This notice is issued under the authority of 46 U.S.C. 70003 and 5 U.S.C. 552.

Footnotes