[Federal Register Volume 59, Number 166 (Monday, August 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21140]


[[Page Unknown]]

[Federal Register: August 29, 1994]


-----------------------------------------------------------------------


DEPARTMENT OF TRANSPORTATION
33 CFR Part 165

[CGD13-90-003]
RIN 2115-AE84

 

Regulated Navigation Area; Puget Sound and Adjacent Waters in 
Northwestern Washington

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule revises the Regulated Navigation Area (RNA) in Puget 
Sound and adjacent waters in northwestern Washington.
    This amendment is needed due to the large numbers of user conflicts 
and potentially hazardous situations which frequently develop during 
periods of vessel traffic congestion within the area, e.g., all 
citizens gillnet fishery. The intended effect of this action is to 
prevent vessel collisions and groundings, loss of property, loss of 
life, and environmental damage, resulting from conflicts between the 
varied users of these waters, including fishing vessels, pleasure 
craft, ferries, towboats, and deep draft vessels.

EFFECTIVE DATE: September 28, 1994.

FOR FURTHER INFORMATION CONTACT: LCDR M. E. Ashley, USCG, Puget Sound 
Vessel Traffic Service, telephone (206) 217-6040.

SUPPLEMENTARY INFORMATION: 

Drafting Information

    The principle persons involved in drafting this regulation are LCDR 
M. E. Ashley, USCG, Project Manager and LT L. Argenti, USCGR, Project 
Counsel.

Regulatory History

    On October 1, 1990, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled Regulated Navigation Area; Puget Sound, WA 
in the Federal Register (55 FR 39986). Based on oral testimony at an 
October 11, 1990 public hearing and written comments received through 
November 15, 1990, the Coast Guard determined the need for substantial 
revision and additional comment. On July 31, 1991 the Coast Guard 
published a supplemental notice of proposed rulemaking (SNPRM) in the 
Federal Register (56 FR 36121). Based upon 13 written comments received 
in response to that notice, and experience gained during trials of the 
procedures conducted during the 1990, 1991, and 1992 salmon fishing 
seasons, the Coast Guard submits this final rule.

Background and Purpose

    On August 13, 1984 the Coast Guard published a final rule to 
establish a Regulated Navigation Area in Puget Sound and adjacent 
waters in northwestern Washington. The final rulemaking re-established 
provisions of a former U.S. Army Corps of Engineers' regulation. The 
regulation also established procedures for Puget Sound Vessel Traffic 
Service (PSVTS) to activate Temporary Special Traffic Lanes (TSTL) to 
facilitate the safe and orderly passage of navigation during periods of 
vessel traffic congestion. When activated, the TSTL was a temporary 
1000 yard wide traffic lane that was required to be vacated for through 
vessel traffic. Activating the TSTL confined two way ship traffic to a 
one-half mile wide lane and eliminated the separation zone of the 
Traffic Separation Scheme (TSS). After several years of experience, the 
TSTL proved to be ineffective in reducing user conflicts. Vessels 
following the TSTL were forced to maneuver to avoid concentrations of 
boats and nets, resulting in frequent close-quarters situations, both 
with fishing vessels and with opposing through traffic within the TSTL.
    The October 1, 1990 NPRM proposed to eliminate provisions for the 
TSTL and associated implementing requirements. The NPRM also proposed 
the following new requirements: non-through traffic to clear the 
Traffic Lanes 15 minutes before the arrival of through traffic; 
prohibited fishing areas in the Edmonds/Kingston, Mukilteo/Clinton, and 
Fauntleroy/Vashon/Southworth ferry crossing routes; a prohibited 
fishing area at the Hood Canal bridge; and, vessels in the TSS to 
monitor the Vessel Traffic Service (VTS) VHF working frequency.
    The July 31, 1991 SNPRM proposed to: (1) Discontinue the TSTL; (2) 
require non-through traffic to clear the Traffic Lanes 15 minutes 
before the arrival of through traffic; (3) prohibit fishing in the 
Edmonds/Kingston ferry crossing lane and in the vicinity of the 
drawspan of the Hood Canal Bridge (the prohibitions against fishing in 
the Mukilteo/Clinton, and Fauntleroy/Vashon/Southworth ferry crossing 
lanes proposed in the NPRM, were deleted from the SNPRM); (4) encourage 
vessels in the TSS to monitor the PSVTS marine radio frequency, vice 
require, as proposed in the NPRM; (5) delete the requirement proposed 
in the NPRM for vessels transiting the TSS to sound special signals 
when approaching areas of congestion; (6) limit speed by vessels 
transiting the TSS to 11 knots, vice 8 knots, as proposed in the NPRM; 
(7) require vessels engaged in gillnet fishing to display a 32 point 
white light at the end of the net most distant from the vessel (deleted 
from final rule because already included in existing rule); (8) provide 
for means of authorizing deviations from rule.

Discussion of Comments and Changes

    The following discussion is based on the 13 written comments to the 
SNPRM and the experience gained through the procedural trials during 
the 1990, 1991, and 1992 salmon fishing seasons:
    (1) Elimination of the TSTL. Three comments were received in 
support of elimination of the TSTL. No comments were received in 
objection to the proposal. Experience with the TSTL has demonstrated 
that even with enforcement vessels on scene, the Coast Guard had 
difficulty keeping the TSTL clear. Deep draft vessels following the 
lane were forced to maneuver to avoid concentrations of boats and nets, 
resulting in frequent close-quarters situations, both with fishing 
vessels and with opposing deep draft traffic within the single lane. 
The standard Traffic Separation Scheme (TSS) is designed to promote 
safety by directing vessel traffic through distinct, separated routes. 
The TSS's are clearly delineated on all official marine charts of the 
Puget Sound region. Use of the TSS without the TSTL should eliminate 
confusion among waterway users.
    (2) Requirement for Congesting Traffic to Clear the Traffic Lanes. 
Five comments were received in support of the proposed requirement for 
vessels not following the TSS to clear the lanes at least 15 minutes 
before the arrival of a vessel following the TSS. No comments were 
received in objection to the proposal. The Coast Guard remains 
convinced that the 15 minute rule is an important safety element in 
managing vessel traffic, especially in conjunction with the speed limit 
provision included in this final rule. The requirement for vessels 
engaged in fishing or other operations to draw in their gear, maneuver, 
or otherwise clear the traffic lane no later than 15 minutes before 
arrival of a vessel following the TSS applies to both lanes of the TSS. 
Puget Sound Vessel Traffic Service (PSVTS) will broadcast the estimated 
time of arrival (ETA) of vessels following the TSS when such vessels 
are approaching areas of vessel traffic congestion. Vessels operating 
in but not following the TSS must clear the traffic lane when a vessel 
following the TSS approaches. In addition, when operating in the TSS 
east of New Dungeness, vessels not following the TSS must also clear 
the adjacent separation zone and connecting precautionary areas. The 
requirement for vessels engaged in fishing, sailing vessels, and 
vessels of less than 20 meters in length not to impede vessels 
following a TSS is delineated in Rule 10 of the International 
Regulations for Prevention of Collisions at Sea (72 COLREGS).
    (3) Prohibited Fishing Areas. Two comments were received in support 
of the proposed prohibited fishing areas in the Edmonds/Kingston ferry 
crossing lanes and at the Hood Canal Bridge. No comments were received 
in objection to the proposal.
    In 1984, when the TSTL was first implemented, the 15 minute rule 
was applied to the Edmonds/Kingston ferry crossing lanes. This rule 
proved to be ineffective as a traffic management tool. Ferry transit 
frequency coupled with the time required to set and retrieve nets 
caused ferries to be constantly stopped and delayed. The Coast Guard 
received numerous complaints from ferry commuters. Members of the 
Washington Congressional delegation also received numerous complaints 
and asked the Coast Guard to find a solution. During the 1990 and 1991 
fishing seasons, PSVTS issued a ``Vessel Traffic Service Direction'', 
which prohibited fishing in the Edmonds/Kingston ferry crossing lanes 
when a hazardous level of vessel congestion was deemed to exist by 
PSVTS. During the 1992 fishing season, the Washington Department of 
Fisheries established a fisheries exclusion zone which prohibited ``all 
citizen'' fishing in an area encompassing the entire Edmonds/Kingston 
ferry crossing. These actions significantly decreased conflicts between 
ferries and fishing vessels, resulting in a much improved flow of ferry 
traffic along the route. There has also been a sharp reduction in the 
number of complaints received regarding ferry delays attributed to 
fishing vessels. Fishing will continue to be allowed within the 
Edmonds/Kingston ferry crossing lanes during nighttime periods when 
ferries do not operate.
    Commanding Officers of U.S. Navy Trident Submarines and Commander, 
Submarine Group 9 have expressed grave concerns regarding the safety of 
fishing vessels that congregate near the drawspan of the Hood Canal 
Bridge and interfere with the passage of submarines. Submarines, while 
traveling on the surface at slow speed display poor maneuver 
capabilities. Fishing vessels clustered in the vicinity of the draw put 
themselves in danger and present an unnecessary hazard to transiting 
submarines. One supporter of the proposal described an extremely unsafe 
situation whereby vessels fishing in the area caused evasive 
maneuvering by a transiting U.S. Navy nuclear submarine. This rule 
establishes a prohibited fishing area within a one half nautical mile 
radius of the center of the draw of the Hood Canal Bridge to be in 
effect only when public vessels are transiting the draw.
    (4) Requirement to Listen to the VTS. Four comments were received 
in support of the proposed requirement for vessels in the TSS to 
monitor the VTS frequency. No comments were received in objection to 
the proposal. Despite the support of commenters to retain the VTS 
frequency monitoring requirement from the previous rule, this 
requirement has been deleted. The Bridge-to-Bridge Radiotelephone Act 
limits VHF requirements to certain classes of vessels which include 
power driven vessels of 20 meters and over in length. The majority of 
vessels which cause congestion in the TSS are less than 20 meters in 
length. Although not required to maintain a listening watch on the VTS 
Frequency, it is considered prudent for vessels of less than 20 meters 
in length to do so, and is highly encouraged. Experience and feedback 
from vessels following the TSS has shown that a key element to a safe 
transit through congested areas is the ability of fishing vessels and 
other craft to maintain a listening watch on VTS communications. PSVTS 
broadcasts the location, course, speed, and ETA of vessels following 
the TSS over VTS Frequencies. This information helps vessels causing 
congestion in the TSS to clear the traffic lanes and thereby comply 
with this regulation and the provisions of Rule 10 of the International 
Regulations for Prevention of Collisions at Sea (72 COLREGS). The 
information provided is particularly useful at night when darkness 
complicates maneuvering situations. Commenters noted that VHF 
communications between vessels allows a mariner to better discern a 
vessel's intentions, an integral element of safe passage. A safe 
alternative to the radio listening watch is to stay clear of the TSS.
    (5) Lights for Marking Fishing Gear. The NPRM proposed to delete 
the provision of the existing rule that requires vessels engaged in 
fishing or other operations along the path of an approaching vessel in 
a traffic lane to show a quick flash of light and illuminate their nets 
or gear. Experience gained during previous salmon fishing seasons has 
shown this requirement to be ineffective and visually chaotic in 
congested areas. No comments were received on this proposal. The 
existing requirement for gillnetters to show a 32 point white light at 
the end of the net most distant from the fishing vessel has proven to 
be effective and has been retained in the final rule.
    (6) Sound Signal for Transiting Congested Areas. Four comments were 
received in response to the proposal to allow the use of special sound 
signals by vessels transiting an area with heavy concentrations of 
vessels engaged in fishing or other operations. Two commenters opposed 
the use of any sound signal. One commenter stated that the signal 
should be voluntary and one commenter stated that the signal should be 
mandatory. Opponents of the sound signal argued that it was in conflict 
with Rule 36 of the International Regulations for the Prevention of 
Collisons at Sea (72 COLREGS). This argument was reinforced by comments 
received from the Navigation Safety Advisory Council (NAVSAC). In 
response to the NPRM of October 1, 1990, NAVSAC acknowledged that 
mandatory use of the proposed signal may cause confusion with 
provisions of the 72 COLREGS. Most commenters asserted that the signals 
prescribed in Rule 34 and the guidance provided in Rule 36 of the 72 
COLREGS should suffice when approaching areas of congestion. Commenters 
opposed to the signal were adamant that the Coast Guard should not 
define a signal to attract attention. In consideration of the comments 
received the Coast Guard will no longer define a specific signal to 
attract attention, but will continue to promote and encourage the use 
of such signals. Therefore, the sound signal provision has been 
eliminated from the final rule.
    (7) Speed Limit. The SNPRM proposed an 8 knot speed limit for 
vessels making through transit of areas of congestion. Nine comments 
were received in response to the proposal. Three commenters, although 
not objecting to a speed limit, felt that 8 knots was too slow. Six 
commenters were adamantly opposed to the imposition of any speed limit. 
They argued that the existing regulations mitigate the need for a 
vessel following the TSS to reduce speed. Some argued that a speed 
reduction would create severe economic impact on carriers by causing 
delays and difficulties in meeting freight schedules. Some pointed out 
that Rule 6 of the 72 COLREGS already addresses safe speed and properly 
leaves the precise determination up to the vessel master based upon 
existing conditions. During the 1991 salmon fishing season, Puget Sound 
Vessel Traffic Service (PSVTS) issued a VTS direction which included an 
8 knot speed limit. During the first half of the season, the direction 
encouraged the use of the 8 knot speed limit, but allowed vessel 
masters the discretion to transit at what they determined to be a safe 
speed. Most vessels slowed to some degree when approaching areas of 
congestion, but many deep draft vessels chose to transit in the 10-12 
knot speed range for reasons of increased control and maneuverability. 
The inconsistent speeds made it difficult for PSVTS to predict the 
precise arrival times of vessels following the TSS. During the second 
half of the season, the Coast Guard made the 8 knot speed limit 
mandatory except for those vessels whose handling characteristics made 
it impracticable. Most vessels following the TSS transited at 8 knots 
and it was noted that arrival times were more easily predicted and 
fishing boats were able to clear the lanes prior to arrival of the 
approaching vessel. Based on comment and experience gained during the 
1991 season, PSVTS issued a VTS direction that set an 11 knot speed 
limit for the 1992 salmon fishing season. The speed limit was imposed 
on occasions when hazardous levels of vessel congestion were deemed to 
exist by PSVTS. These occasions included congestion caused by not only 
the commercial salmon fishing season, but recreational fishing and 
other marine activities. This speed limit was better received by the 
local maritime community and was followed without complaint by vessels 
following the TSS. The 11 knot speed limit has been included in the 
final rule.
    The Coast Guard chose 11 knots for several reasons. Some commenters 
acknowledged the benefit of a speed limit, but felt that 8 knots was 
too slow. During the 1991 trial of the 8 knot speed limit, a few 
vessels reported that 8 knots was too slow for adequate maneuvering, 
but none claimed that they needed a speed greater than 11 knots. PSVTS 
Watch Supervisors noted that 10-11 knots was the typical speed at which 
vessels objecting to the 8 knot speed limit traveled. Also, 11 knots is 
the voluntary transit speed for tankers in adjoining Rosario Strait.
    (8) Deviation From the Regulation. The SNPRM proposed a new section 
which provided criteria for the Coast Guard to authorize, in advance, 
deviations from the rule. Four comments were received in support of the 
provision proposed in the SNPRM to allow the Coast Guard to authorize 
deviations from the rule. No comments were received in opposition to 
the rule. However, one commenter noted that certain on-scene 
emergencies require immediate action which may prevent advance approval 
of a request for deviation. The rule takes this into account by 
providing that the master, pilot, or other person directing movement of 
a vessel may deviate from the rule to the extent necessary to avoid 
endangering persons, property, or the environment and shall report the 
deviation to the Vessel Traffic Center (VTC) as soon as possible.

Regulatory Evaluation

    This regulation 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. It has been exempted from review by the Office of 
Management and Budget 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 economic impact of this action has been determined to be so 
minimal that a full Regulatory Evaluation is unnecessary. This decision 
is based on the infrequency of fishery openings, the arrival rate of 
vessels following the TSS, the usual practice of reducing speed when 
transiting areas of congestion, and the short distance to which the 
speed limit is applied. No adverse economic impact is expected on 
vessels following the TSS, as a result of this rule. Because of the 
infrequency of fishery openings the prohibited fishing areas are 
expected to have little or no impact on the overall success rate of the 
commercial fishing fleet. The requirement for gillnetters who fish in 
the TSS to mark their nets with an all-around white light should impose 
no economic impact on this group, because the majority already have 
this equipment. In addition, the light should reduce net loss and 
damage through net strikes by passing vessels.

Small Entities

    For reasons already given in the Regulatory Evaluation Section of 
this preamble, the Coast Guard expects this rule to have minimal impact 
on all entities coming under its provisions. In addition, no 
substantive comments concerning economic hardship due to the imposition 
of the rule, were received from potentially affected parties. 
Therefore, the Coast Guard certifies under section 605(b) of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

Collection of Information

    This rule contains no collection of information requirements under 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this action in accordance with the 
principles and criteria contained in Executive Order 12612, and it has 
been determined that this final rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment. None of the comments received in response to the NPRM or 
SNPRM indicated that the rule would have an adverse impact on state 
fisheries regulations or Native American fishing rights.

Environment

    The Coast Guard considered the environmental impact of this action 
and concluded that preparation of an Environmental Impact Statement is 
not necessary. An Environmental Assessment and Finding of No 
Significant Impact are available in the docket for inspection and 
copying where indicated under ``ADDRESSES''. After reviewing the 
comments received and considering the effects of this action, it was 
concluded that the only environmental impact of this rulemaking would 
be to decrease the likelihood of either an oil spill or release of 
hazardous materials into the environment resulting from vessel 
collisions or groundings.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

Final Regulation

    For the reasons set out in the preamble, the Coast Guard amends 33 
CFR Part 165 as follows:

PART 165--[AMENDED]

    1. The authority citation for Part 165 of Title 33, Code of Federal 
Regulations continues to read as follows:

    Authority: 33 U.S.C. 1225 and 1231; 50 U.S.C. 191; 49 CFR 1.46 
and 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5.

    2. Section 165.1301 is revised to read as follows:


Sec. 165.1301  Puget Sound, and Adjacent Waters in Northwestern 
Washington--Regulated Navigation Area.

    The following is a regulated navigation area--All of the following 
northwestern Washington waters under the jurisdiction of the Captain of 
the Port, Puget Sound: Puget Sound, Hood Canal, Possession Sound, 
Elliott Bay, Commencement Bay, the San Juan Archipelago, Rosario 
Strait, Guemes Channel, Bellingham Bay, U.S. waters of the Strait of 
Juan de Fuca, Haro Strait, Boundary Pass, and Georgia Strait, and all 
lesser bays and harbors adjacent to the above.
    (a) Definitions as used in this section:
    (1) Vessels engaged in fishing are as identified in the definition 
found in Rule 3 of the International Regulations for Prevention of 
Collisions at Sea, 1972, (72 COLREGS), found in Appendix A, Part 81 of 
this chapter.
    (2) Hazardous levels of vessel traffic congestion are as defined at 
the time by Puget Sound Vessel Traffic Service.
    (b) This section is intended to enhance vessel traffic safety 
during periods and in locations where hazardous levels of vessel 
traffic congestion are deemed to exist by Puget Sound Vessel Traffic 
Service. Operations potentially creating vessel traffic congestion 
include, but are not limited to, vessels engaged in fishing, including 
gillnet or purse seine, recreational fishing derbies, regattas, or 
permitted marine events.
    (c) General regulations. (1) Nothing in this section shall be 
construed as relieving any party from their responsibility to comply 
with applicable rules set forth in the 72 COLREGS.
    (2) Vessels engaged in fishing or other operations--that are 
distinct from vessels following a Traffic Separation Scheme (TSS) or a 
connecting precautionary area east of New Dungeness, may not remain in, 
nor their gear remain in, a traffic lane or a connecting precautionary 
area east of New Dungeness when a vessel following a TSS approaches an 
area where hazardous levels of vessel traffic congestion are deemed to 
exist. Vessels not following a TSS or a connecting precautionary area 
east of New Dungeness shall draw in their gear, maneuver, or otherwise 
clear these areas so that their action is complete and the traffic lane 
and connecting precautionary area is clear at least fifteen minutes 
before the arrival of a vessel following the TSS. Vessels which are 
required by this section to leave the traffic lane or connecting 
precautionary area must also remain clear of the adjacent separation 
zone when in a TSS east of New Dungeness.
    (3) Vessels engaged in fishing or other operations--that are 
distinct from vessels following a TSS or a connecting precautionary 
area east of New Dungeness and which are not required by the Bridge to 
Bridge Radiotelephone Regulations to maintain a listening watch, are 
highly encouraged to maintain a listening watch on the Puget Sound 
Vessel Traffic Service (PSVTS) VHF-FM radio frequency for the area in 
which the vessel is operating. A safe alternative to the radio 
listening watch is to stay clear of the TSS.
    (4) Vessels engaged in fishing in a traffic lane or connecting 
precautionary area east of New Dungeness shall tend nets or other gear 
placed in the water so as to facilitate the movement of the vessel or 
gear from the traffic lane or precautionary area upon the approach of a 
vessel following the TSS.
    (5) Vessels engaged in gill net fishing at any time between sunset 
and sunrise in any of the above-listed waters shall, in addition to the 
navigation lights and shapes required by Part 81 of this title (72 
COLREGS), display at the end of the net most distant from the vessel an 
all-round (32-point) white light visible for a minimum of two nautical 
miles and displayed from at least three feet above the surface of the 
water.
    (6) A vessel following the TSS may not exceed a speed of 11 knots 
through the water when transiting areas where hazardous levels of 
vessel traffic congestion are deemed to exist.
    (d) Prohibited fishing areas. Vessels engaged in fishing, including 
gillnet and purse seine fishing, are prohibited in the following areas:
    (1) Edmonds/Kingston ferry crossing lanes, to include the waters 
within one-quarter nautical mile on either side of a straight line 
connecting the Edmonds and Kingston ferry landings during the hours 
that the ferry is operating.
    (2) The Hood Canal Bridge, to include the waters within a one-half 
nautical mile radius of the center of the main ship channel draw span 
during the immediate approach and transit of the draw by public 
vessels.
    (e) Authorization to deviate from this section. (1) Commander, 
Thirteenth Coast Guard District may, upon written request, issue an 
authorization to deviate from this section if the proposed deviation 
provides a level of safety equivalent to or beyond that provided by the 
required procedure. An application for authorization must state the 
need for the deviation and describe the proposed alternative operation.
    (2) PSVTS may, upon verbal request, authorize a deviation from this 
section for a voyage, or part of a voyage, if the proposed deviation 
provides a level of safety equivalent to or beyond that provided by the 
required procedure. The deviation request must be made well in advance 
to allow the requesting vessel and the Vessel Traffic Center (VTC) 
sufficient time to assess the safety of the proposed deviation. 
Discussions between the requesting vessel and the VTC should include, 
but are not limited to, information on vessel handling characteristics, 
traffic density, radar contracts, and environmental conditions.
    (3) In an emergency, the master, pilot, or person directing the 
movement of the vessel following the TSS may deviate from this section 
to the extent necessary to avoid endangering persons, property, or the 
environment, and shall report the deviation to the VTC as soon as 
possible.

    Dated: July 11, 1994.
J. W. Lockwood,
Rear Admiral, U.S. Coast Guard Commander, 13th Coast Guard District.
[FR Doc. 94-21140 Filed 8-26-94; 8:45 am]
BILLING CODE 4910-14-M