[Federal Register Volume 63, Number 31 (Tuesday, February 17, 1998)]
[Rules and Regulations]
[Pages 7707-7709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3914]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD 13-98-002]
RIN 2115-AE84


Clarification and Rearrangement of Puget Sound Vessel Traffic 
Service Regulated Navigation Area (RNA) Regulations

AGENCY: Coast Guard, DOT.

ACTION: Direct final rule.

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SUMMARY: By this direct final rule, the Coast Guard is rearranging and 
clarifying the current wording of Puget Sound Vessel Traffic Service 
Regulated Navigation Area Regulations. This action is necessary to 
clearly differentiate between conditions when ``general regulations'' 
and ``congested regulations'' apply within the Regulated Navigation 
Area of Puget Sound. This direct final rule will make no substantive 
changes in the meaning or interpretation of the existing regulations. 
The direct final rule is intended to improve understanding of, and 
compliance with, these regulations, and to make these regulations less 
subject to confusion by waterway users.

DATES: This rule is effective May 18, 1998, unless the Coast Guard 
receives a written adverse comment or written notice of intent to 
submit an adverse comment on or before April 20, 1998. If the Coast 
Guard receives a written adverse comment or notice of intent to submit 
a written adverse comment is received, the Coast Guard will withdraw 
this direct final rule and publish a timely notice of withdrawal in the 
Federal Register.

ADDRESSES: You may mail or deliver comments to U.S. Coast Guard, 
Thirteenth Coast Guard District, Marine Safety Division, 915 2nd 
Avenue, Room 3506, Seattle, WA, 98174-1067. Normal office hours are 
between 8:00 a.m. and 4:00 p.m., Monday through Friday, except Federal 
holidays. The telephone number is (206) 220-7217.
    The Marine Safety Division maintains the public docket for this 
rulemaking. Comments, and documents as indicated in this preamble, will 
become part of this docket and will be available for inspection or 
copying at the above address.

FOR FURTHER INFORMATION CONTACT: LT Chris Woodley, C-GD13 (moc-2), 915 
2nd Avenue, Room 3506, Seattle, WA, 98174-1067, (206) 220-7217.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names and addresses, 
identify this rulemaking (CGD 13-98-002) and the specific section of 
this document to which each comment applies, and give the reason for 
each comment. Please submit two copies of all comments and attachments 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. Persons wanting acknowledgment of 
receipt of comments should enclose stamped, self-addressed postcards or 
envelopes.

Regulatory Information

    The Coast Guard is publishing a direct final rule, the procedures 
of which are outlined in 33 CFR 1.05-55, because no adverse comment is 
anticipated. If no adverse comment or written notice of intent to 
submit an adverse comment is received within the specified comment 
period, this rule will become effective as stated in the DATES section. 
In that case, approximately 30 days before the effective date, the 
Coast Guard will publish a document in the Federal Register stating 
that no adverse comment was received and confirming that this rule will 
become effective as scheduled. However, if the Coast Guard receives a 
written adverse comment or written notice of intent to submit an 
adverse comment, the Coast Guard will publish a document in the Federal 
Register announcing withdrawal of all or part of this direct final 
rule. If an adverse comment applies to only part of this rule and it is 
possible to remove that part without defeating the purpose of this 
rule, the Coast Guard may adopt as final those parts of this rule on 
which no adverse comment was received. The part of this rule that was 
the subject of an adverse comment will be withdrawn. If the Coast Guard 
decides to proceed with a rulemaking following receipt of an adverse 
comment, the Coast Guard will publish a separate Notice of Proposed 
Rulemaking (NPRM) and provide a new opportunity for comment.
    A comment is considered ``adverse'' if the comment explains why 
this rule would be inappropriate, including a challenge to the rule's 
underlying premise or approach, or would be ineffective or unacceptable 
without a change.

Background and Purpose

    On August 29, 1994, the Coast Guard published in the Federal 
Register [39 FR 44321] the Final Rule [CGD13 90-003] for a Regulated 
Navigation Area (RNA) for Puget Sound (33 CFR 165.1301) and adjacent 
waters in northwestern Washington to prevent vessel collisions and 
groundings, loss of property, loss of life, and environmental damage, 
resulting from conflicts between varied users of these waters. These 
regulations were intended to encompass fishing vessels, pleasure craft, 
ferries, towboats, and deep draft vessels. As written, the regulations 
of 33 CFR 165.1301 are unclear as to which provisions apply all the 
time (general regulations) and which provisions apply only when 
hazardous levels of vessel traffic congestion exist (congestion 
regulations). Currently, the only clarification between general and 
congested conditions is written in the Puget Sound Vessel Traffic 
Service Users Manual. This document is not legally binding and is 
subject to challenge. Consequently, it is necessary to rearrange and 
clarify the current text 33 CFR 165.1301 to promote a better 
understanding of these regulations by waterway users, and improve 
compliance within the Puget Sound Regulated Navigation Area. The 
proposed changes are in alignment with current practice, and with the 
``Discussion of Comments and Changes'' section of the Final Rule 
published in the Federal Register on August 29, 1994.

[[Page 7708]]

Discussion of Rule

    This direct final rule will rearrange and clarify the existing 
regulations of 33 CFR 165.1301, with particular emphasis on paragraphs 
(b), (c), and (d). Specifically, this direct final rule will make 
distinctions between when ``general regulations'' and ``congestion 
regulations'' apply within the Puget Sound Regulated Navigation Area. 
Paragraph 1301(b) will address applicability of the 72 COLREGS as is 
currently addressed in paragraph (c)(1). Paragraph 1301(c) will 
continue to be titled ``General Regulations,'' but would be rearranged 
to contain existing provisions that apply at all times within the Puget 
Sound RNA. Paragraph 1301(d) would be renamed ``Congestion 
Regulations'' and will contain existing provisions that apply only when 
hazardous levels of congestion are deemed to exist by Puget Sound 
Vessel Traffic Service. The provisions of old paragraph (d), currently 
titled ``Prohibited Fishing Areas,'' will be incorporated into new 
paragraphs (c) and (d). Paragraphs (a) and (e) will remain unchanged.

Regulatory Evaluation

    This 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. It 
has not been reviewed 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 Coast Guard expects the economic impact of this 
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 direct final rule is a rearrangement and clarification of existing 
regulations. There is no substantive change as a result of this action. 
Waterway users currently affected by the current regulations of 33 CFR 
165.1301 will not have to alter current practices, and will incur no 
additional cost in complying with this direct final rule.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard considers whether this rule will have a significant 
economic impact on a substantial number of small entities. ``Small 
entities'' include 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 rearrangement and clarification of 33 CFR 165.1301 (b)-(d) 
will have no impact on small entities because no substantive changes or 
new interpretations are being made to the regulations. This section of 
the regulations is being rewritten to simply remove confusion and 
improve understanding of, and compliance with, the existing 
regulations. 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.

Collection of Information

    This rule does not provide for a collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Federalism

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

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under paragraph 2.B.2.l. of Commandant Instruction 
M16475.lB, this rule is categorically excluded from further 
environmental documentation. This direct final rule is a procedural 
clarification of an existing regulation which clearly does not have any 
environmental impacts. A ``Categorical Exclusion Determination'' is 
available in the docket for inspection or copying where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

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

Regulation

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:
    1. The authority citation for Part 165 continues to read as 
follows:

Part 165--[AMENDED]

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

    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 
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) 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.
    (c) General Regulations: The provisions of this paragraph apply at 
all times.
    (1) 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 and connecting 
precautionary area.
    (2) Vessels engaged in gill net fishing at any time between sunset 
and sunrise in any of the waters defining the regulated navigation are 
of this section 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 on 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.
    (3) Vessels engaged in fishing, including gillnet and purse seine 
fishing, are prohibited in the following Prohibited Fishing Area: The 
Hood Canal Bridge, to include the waters within a one-half nautical 
mile radius of the center of the main ship channel

[[Page 7709]]

draw span during the immediate approach and transit of the draw by 
public vessels of the United States.
    (4) East of New Dungeness, vessels engaged in fishing in a traffic 
lane or connecting precautionary area 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.
    (d) Congested Regulations: The provisions under this paragraph 
apply only when imposed in specific locations by Puget Sound Vessel 
Traffic Service. They are 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.
    (1) 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. 
Such vessels not following a TSS or a connecting precautionary area 
shall draw in their gear, maneuver, or otherwise clear these areas so 
that their action is complete at least fifteen minutes before the 
arrival of a vessel following the TSS. Vessels which are required by 
this paragraph to remain clear of a connecting precautionary area east 
of New Dungeness or a traffic lane must also remain clear of the 
adjacent separation zone when in a TSS east of New Dungeness.
    (2) A vessel following the TSS may not exceed a speed of 11 knots 
through the water.
    (3) Vessels engaged in fishing, including gillnet and purse seine 
fishing, are prohibited in the following Prohibited Fishing Area: 
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.
    (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: February 2, 1998.
J. David Spade,
Rear Admiral, U.S. Coast Guard District Commander
[FR Doc. 98-3914 Filed 2-13-98; 8:45 am]
BILLING CODE 4910-14-M