C
U. S. Coast Guard Polar Icebreaking Authority and Policy

BASIC STATUTORY AUTHORITIES

The legislative authorities for Coast Guard missions are contained in Title 14 of the United States Code; other Titles contain relevant authorities affecting various aspects of Coast Guard responsibilities. None of the Coast Guard’s basic missions are limited to ice-free waters. The following U.S.C. sections pertain to particularly polar icebreaking and potential future changes in the polar regions.


14 U.S.C. 2 specifies icebreaking as one of several basic Coast Guard functions and notes a national defense connection: “The Coast Guard shall develop, maintain, and operate with due regard to the requirements of national defense, aids to navigation, icebreaking facilities, and rescue facilities for the promotion of safety on and over the high seas and waters subject to the jurisdiction of the United States; and pursuant to international agreements, operate icebreaking facilities on waters other than high seas and waters subject to the jurisdiction of the United States.” 14 U.S.C. 2 also specifies one of the duties of the Coast Guard is to engage in oceanographic research.

14 U.S.C. 81 authorizes the Coast Guard to maintain aids to navigation, some of which require the use of icebreaking facilities.

14 U.S.C. 88 generally authorizes the Coast Guard to aid persons and property in distress on and under the high seas and waters over which the U.S. has jurisdiction, or imperiled by flood. Distress may be caused by, among other things, vessels beset in ice.

14 U.S.C. 93 authorizes the Coast Guard to maintain icebreaking facilities. It generally authorizes the Coast Guard to conduct experiments and investigations to assist in the performance of its duties, and to establish shore facilities.

14 U.S.C. 94 requires the Coast Guard to conduct oceanographic research and to cooperate with other government agencies as may be in the national interest.

14 U.S.C. 141 authorizes the Coast Guard to utilize its personnel and facilities to assist, among others, federal and state agencies. Under this authority the Coast Guard provides icebreaking services to user agencies such as the Department of Defense and the National Science Foundation; upon proper request, the Coast Guard conducts icebreaking in harbors and channels to relieve flooding conditions.

14 U.S.C. 147 authorizes cooperation with the National Oceanic and Atmospheric Administration (NOAA) for meteorological observations and services.

15 U.S.C. 4101 states: “The United States has important security, economic, and environmental interests in developing and maintaining a fleet of icebreaking vessels capable of operating effectively in the heavy ice regions of the Arctic.”

15 U.S.C. 4109(b)(2) states: “The Office of Management and Budget shall seek to facilitate planning for the design, procurement, maintenance, deployment, and operations of icebreakers needed to provide a platform for Arctic research by allocating all funds necessary to support icebreaking operations, except for recurring funds associated with specific projects, to the Coast Guard.”

16 U.S.C. 2431(a)(6) states: “The United States has important security, economic, and environmental interests in developing and maintaining a fleet of icebreaking vessels capable of operating effectively in the heavy ice regions of the Antarctic.”

16 U.S.C. 2441(c) states: “Icebreaking.—The Department of Transportation shall facilitate planning for the design, procurement, maintenance, deployment, and operations of icebreakers needed to provide a platform for Antarctic research. All funds necessary to support icebreaking operations, except for recurring funds asso-



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Polar Icebreakers in a Changing World: An Assessment of U.S. Needs C U. S. Coast Guard Polar Icebreaking Authority and Policy BASIC STATUTORY AUTHORITIES The legislative authorities for Coast Guard missions are contained in Title 14 of the United States Code; other Titles contain relevant authorities affecting various aspects of Coast Guard responsibilities. None of the Coast Guard’s basic missions are limited to ice-free waters. The following U.S.C. sections pertain to particularly polar icebreaking and potential future changes in the polar regions. 14 U.S.C. 2 specifies icebreaking as one of several basic Coast Guard functions and notes a national defense connection: “The Coast Guard shall develop, maintain, and operate with due regard to the requirements of national defense, aids to navigation, icebreaking facilities, and rescue facilities for the promotion of safety on and over the high seas and waters subject to the jurisdiction of the United States; and pursuant to international agreements, operate icebreaking facilities on waters other than high seas and waters subject to the jurisdiction of the United States.” 14 U.S.C. 2 also specifies one of the duties of the Coast Guard is to engage in oceanographic research. 14 U.S.C. 81 authorizes the Coast Guard to maintain aids to navigation, some of which require the use of icebreaking facilities. 14 U.S.C. 88 generally authorizes the Coast Guard to aid persons and property in distress on and under the high seas and waters over which the U.S. has jurisdiction, or imperiled by flood. Distress may be caused by, among other things, vessels beset in ice. 14 U.S.C. 93 authorizes the Coast Guard to maintain icebreaking facilities. It generally authorizes the Coast Guard to conduct experiments and investigations to assist in the performance of its duties, and to establish shore facilities. 14 U.S.C. 94 requires the Coast Guard to conduct oceanographic research and to cooperate with other government agencies as may be in the national interest. 14 U.S.C. 141 authorizes the Coast Guard to utilize its personnel and facilities to assist, among others, federal and state agencies. Under this authority the Coast Guard provides icebreaking services to user agencies such as the Department of Defense and the National Science Foundation; upon proper request, the Coast Guard conducts icebreaking in harbors and channels to relieve flooding conditions. 14 U.S.C. 147 authorizes cooperation with the National Oceanic and Atmospheric Administration (NOAA) for meteorological observations and services. 15 U.S.C. 4101 states: “The United States has important security, economic, and environmental interests in developing and maintaining a fleet of icebreaking vessels capable of operating effectively in the heavy ice regions of the Arctic.” 15 U.S.C. 4109(b)(2) states: “The Office of Management and Budget shall seek to facilitate planning for the design, procurement, maintenance, deployment, and operations of icebreakers needed to provide a platform for Arctic research by allocating all funds necessary to support icebreaking operations, except for recurring funds associated with specific projects, to the Coast Guard.” 16 U.S.C. 2431(a)(6) states: “The United States has important security, economic, and environmental interests in developing and maintaining a fleet of icebreaking vessels capable of operating effectively in the heavy ice regions of the Antarctic.” 16 U.S.C. 2441(c) states: “Icebreaking.—The Department of Transportation shall facilitate planning for the design, procurement, maintenance, deployment, and operations of icebreakers needed to provide a platform for Antarctic research. All funds necessary to support icebreaking operations, except for recurring funds asso-

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Polar Icebreakers in a Changing World: An Assessment of U.S. Needs ciated with specific projects, shall be allocated to the United States Coast Guard.” 33 U.S.C. 1254 authorizes the Coast Guard to cooperate with the Environmental Protection Agency in research related to the removal, prevention, control, and elimination of oil and hazardous substance pollution. 33 U.S.C. 1441-1442 requires the Coast Guard, jointly with the Environmental Protection Agency and the Department of Commerce, to conduct research on ocean dumping as may affect oceanic and coastal waters, and the Great Lakes and its connecting waters. 46 U.S.C. 738-738d authorizes the Coast Guard to provide the patrol services required for the International Ice Patrol established therein and to annually report on the services so rendered. 49 U.S.C. 101 establishes as National Transportation Policy, the facilitation of commerce. TREATIES AND INTERNATIONAL AGREEMENTS The following treaties and agreements affect U.S. icebreaker responsibilities and operations. A variety of other international conventions and protocols address general maritime issues such as safety at sea and, especially, maritime pollution prevention and response. In general, these protocols and conventions apply to ice-covered waters of the polar regions. The Antarctic Treaty (1959) provides the fundamental basis for U.S. policy and presence in Antarctica. The 27 countries with consultative status have adopted over 200 recommendations and five separate international agreements, which together constitute the Antarctic Treaty System. The five international agreements are: Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964). Convention on the Conservation of Antarctic Seals (1972). Convention on the Conservation of Antarctic Marine Living Resources (1980). Convention on the Regulation of Antarctic Mineral Resource Activities (1988). Protocol on Environmental Protection to the Antarctic Treaty (1991). United Nations Convention on the Law of the Sea (UNCLOS). 157 nations have signed the UNCLOS, which entered into force in 1994. Although the United States has not ratified the treaty, no significant U.S. objections remain and action by the Senate Foreign Relations Committee to ratify is expected. Under Article 76 of the treaty, a coastal state may claim jurisdiction over the seabed and subsoil of “submerged extensions of the continental margin” beyond their current exclusive economic zone (EEZ). An Article 76 claim is based on a set of limit lines defined from the depth and shape of the seafloor, the thickness of the underlying sediments, and other geophysical evidence such as gravity or magnetics. This UNCLOS article is particularly relevant to the Arctic Ocean basin, which features a pronounced but poorly mapped continental margin and is subject to conflicting claims by Arctic nations (including the United States). USCGC HEALY has mapped ice-covered Arctic Ocean bathymetry with its bottom-mapping sonar during two cruises (2003 and 2004). Agreement Between the Government of the United States of America and the Government of Canada on Arctic Cooperation. This agreement, signed on January 11, 1988, resulted from USCGC POLAR SEA’s transit of the Northwest Passage in the summer of 1985. POLAR SEA proceeded from east to west through the Canadian Archipelago as the most expeditious route to homeport in Seattle following operations around Greenland; the transit was not intended to reinforce the U.S. view that the passage is an international strait, but it aroused significant Canadian media interest. Many in Canada believed the U.S. was purposefully flaunting Canadian sovereignty. The agreement was fashioned to allow future icebreaker operations while allowing both nations to reserve their positions on the status of the Northwest Passage. It has been used successfully in subsequent years for U.S. icebreaker transits. The agreement reads as follows: The Government of the United States and the Government of Canada recognize the particular interests and responsibilities of their two countries as neighbouring states in the Arctic. The Government of Canada and the Government of the United States also recognize that it is desirable to cooperate in order to advance their shared interests in Arctic development and security. They affirm that navigation and resource development in the Arctic must not adversely affect the unique environment of the region and the well-being of its inhabitants. In recognition of the close and friendly relations between their two countries, the uniqueness of ice-covered maritime areas, the opportunity to increase their knowledge of the marine environment of the Arctic through research conducted during icebreaker voyages, and their shared interest in safe, effective navigation off their Arctic coasts: The Government of the United States and the Government of Canada undertake to facilitate navigation by their icebreakers in their respective Arctic waters and to develop cooperative procedures for this purpose; The Government of Canada and the Government of the United States agree to take advantage of their icebreaker navigation to develop and share research information, in accordance with generally accepted principles of international law, in order to advance their understanding of the marine environment of the area;

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Polar Icebreakers in a Changing World: An Assessment of U.S. Needs The Government of the United States pledges that all navigation by U. S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada. Nothing in this agreement of cooperative endeavor between Arctic neighbours and friends nor any practice thereunder affects the respective positions of the Government of the United States and the Government of Canada on the Law of the Sea in this or other maritime areas or their respective positions regarding third parties. This agreement shall enter into force upon signature. It may be terminated at any time by three months’ written notice given by one Government to the other. Memorandum of Understanding Between the Department of Transportation of the United States of America and the Ministry of Transport of Canada Concerning Research and Development Cooperation in Transportation. This broad agreement was signed on June 18, 1970, and has served as the basis for a variety of cooperative transportation projects by the two countries. In 1993, the agreement served as the formal instrument for the exchange of icebreaking services in the Arctic. In 1993, Canadian Coast Guard icebreakers provided standby icebreaker support for ships resupplying Thule Air Base in northwestern Greenland, eliminating the need to send a U.S. Coast Guard icebreaker from Seattle every summer. In return, the U.S. Coast Guard has agreed to provide icebreaking support in the western Arctic, an area where Canadian ships operate only sporadically, upon request by Canada. PRESIDENTIAL EXECUTIVE ORDERS AND MEMORANDA Executive Order 7521 (1936) directs the Coast Guard to undertake icebreaking operations for harbors and channels, “in accordance with the reasonable demands of commerce.” This executive order has constituted the basic authority for what has generally been called “domestic icebreaking” in mid-Atlantic and northeastern U.S. and on the Great Lakes. Ice-strengthened Coast Guard cutters and icebreakers have traditionally provided assistance to commercial vessels, especially to facilitate movement of critical cargoes such as fuel oil, assisted remote communities isolated by abnormal ice conditions, and responded to persons and vessels in distress. National Security Decision Memorandum 71 (July 10, 1970) documents a Presidential decision that “the Antarctic program should be continued at a level which maintains an active and influential United States presence in Antarctica and which is responsive to United States scientific, economic and political objectives.” Budget authority is transferred from the Department of Defense to the National Science Foundation, which shall “draw upon logistic support capabilities of government agencies on a mutually acceptable reimbursement or non-reimbursement basis.” NSF is to use “commercial support and management facilities where there are determined to be cost effective.” National Security Decision Memorandum 318 (February 26, 1976) reaffirms NSDM 7521. Changes include an amplification of using commercial support and management facilities, which must be not only cost effective but also determined by “the Antarctic Policy Group not to be detrimental to the national interest.” In addition, NSDM 318 states that “the use of logistic support by the Department Defense—assisted by the Coast Guard—gives the U.S. an important flexibility and reach to operate in that area.” The DoD and Department of Transportation are to “maintain the capability to provide the logistic support requested by the National Science Foundation.” Presidential Memorandum 6646 (February 5, 1982) reaffirms the provisions of NSDM 318, but clarifies U.S. presence to include “the conduct of scientific activities in major disciplines; year-round occupation of the South Pole and two coastal stations; and availability of related necessary logistics support.” Presidential Decision Directive/NSC-26 (March 9, 1996) provides a comprehensive summary of U.S. national interests in Antarctica (expanding the background and rationale for the U.S. Antarctic Program beyond that contained in the earlier presidential memoranda) and specifically authorizes funding for rebuilding the South Pole Station. Other U.S. Government Policy Instruments and Agreements United States Polar Icebreaker Requirements Study (11 July 1984). Directed by the Office of Management and Budget, this multiagency 400-page report resulted from a comprehensive review of national requirements at a time when the World War II-era Wind class icebreakers and GLACIER were at the end of their useful service lives. The increasing needs for polar research were a notable part of the study. Alternatives to using icebreakers were evaluated. The study concluded: “An icebreaker fleet is essential to the national interest” and “should be operated by the Coast Guard.” Significant study recommendations included: The Coast Guard should maintain a fleet of four polar icebreakers to meet stated requirements. Design of a new icebreaker should begin immediately, which would enhance research while retaining escort and logistics capabilities, with icebreaking capability “between a Wind and a Polar-class.” Capital costs of a new icebreaker should be funded by the Coast Guard. The interagency reimbursement system should be reexamined. Crewing and operating day standards should be evaluated.

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Polar Icebreakers in a Changing World: An Assessment of U.S. Needs The science capabilities of existing icebreakers (the Polars) should be improved. Polar Icebreaker Requirements, Presidential Report to the Congress (October 1990). Required by the Coast Guard Authorization Act of 1988 (Public Law 100-448), this report updated the 1984 Polar Icebreaker Requirements Study. Agency requirements for polar icebreaker support were reviewed quantitatively, and various acquisition alternatives were discussed. The report contained a one-sentence conclusion: “Based on this analysis, the Administration has concluded that in addition to the Coast Guard’s two existing polar icebreakers and the National Science Foundation’s ice-capable research vessel, the U.S. currently requires one additional Coast Guard polar icebreaker.” The 1990 report cleared the way for funding of USCGC HEALY. Revised Memorandum of Agreement Between the Department of the Navy and the Department of the Treasury on the Operation of Icebreakers (1965). Although dated, this agreement has never been cancelled and provides basic authority for Coast Guard icebreakers to support peacetime, wartime and contingency operations in high latitudes. In addition, it states that the Coast Guard will provide icebreaking services to meet the reasonable demands of commerce in United States ports, harbors, and inland waterways. Memorandum of Agreement Between the United States Coast Guard and the National Science Foundation Regarding Polar Icebreaker Support and Reimbursement (August 9, 2005). This agreement is the latest of a series (the last dated May 25, 1999) addressing the use of USCG polar icebreakers in support of NSF Arctic and Antarctic programs. This latest agreement was necessitated by the transfer of all icebreaker budget funds from the Coast Guard to NSF. Provisions include an annual scheduling process that, in addition to NSF requirements, considers “all national priorities” and the needs of other government agencies. The need for icebreakers to conduct “traditional USCG missions” such as search and rescue and enforcement of laws and treaties is noted and is to be funded from the “program base.” In a reversal of past practice, NSF is required to reimburse the Coast Guard for actual icebreaker costs. Memorandum of Agreement between United States Coast Guard, United States Navy and National Oceanic and Atmospheric Administration (July 21, 2005). This agreement establishes procedures for the jointly operated National Ice Center and commits the participating agencies to provide “the highest quality strategic and tactical ice services tailored to meet the operational requirements of U.S. national interests.” The Coast Guard provides staff, on-scene observations, and other oceanographic support as inputs to the National Ice Center and uses ice information for icebreaker planning and operations. Ice services include polar and subpolar areas as well as ice coverage in the continental U.S. Memorandum of Agreement Between the Department of Defense and the National Science Foundation for Operational and Logistics Support of the National Science Foundation’s Polar Programs (effective April 1, 1999). This agreement provides detailed arrangements for DoD support to the National Science Foundation, especially to the Antarctic Program. It notes that the Coast Guard will provide icebreaker support and indicates that Coast Guard icebreakers supporting logistics operations in McMurdo Sound will be under the tactical control (TACON) of the Commander, Operation Deep Freeze. Vice Chairman, Joint Chiefs of Staff Memorandum dated 14 June 1990. Documenting a review by the Joint Requirements Oversight Council, the memo states “the requirement for two polar icebreakers to conduct resupply operations in support of air bases in Greenland remains valid,” but beyond this, “no significant military missions have been identified.” While the memo states the Department’s wartime requirements can be met by two polar icebreakers, a handwritten note indicates “other non-DoD Polar Icebreaking requirements justify a fleet of four polar capable icebreakers.” The memo states classified requirements documentation is available. INTERNAL COAST GUARD DIRECTIVES AND POLICY The U.S. Coast Guard has no internal directives or policy documents that specifically address polar icebreaking operations. However, general guidance is included in operation orders issued for each polar deployment. The following policy guidance is typically included to authorize or direct the commanding officer of the icebreaker to take action as appropriate. Sampling of the continental shelf of any foreign nation, or trenches contained within the shelf, is prohibited without specific permission from the nation involved. Foreign nations must be notified of marine research which will occur within their exclusive economic zones (EEZ). The EEZ is composed of those waters within 200 nautical miles of the nation’s coastal boundaries, or as defined by international agreement. The responsibility of requesting Department of State notification rests with the project sponsor. The icebreaker’s aircraft are authorized to carry personnel and materials as necessary, including foreign nationals. Depending on the areas of operations, the icebreaker may be authorized to participate in civic action projects in foreign ports, exchange personnel and exercise with foreign services and agencies for training and familiarity, host diplomatic events in concert with State Department requests, and collect information of interest.