[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Rules and Regulations]
[Pages 23191-23193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9895]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 167

[Docket No. USCG-2002-12702]
RIN 1625-AA48


Traffic Separation Schemes: In the Strait of Juan de Fuca and Its 
Approaches; in Puget Sound and its Approaches; and in Haro Strait, 
Boundary Pass, and the Strait of Georgia

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is finalizing without change its November 19, 
2010, interim rule codifying traffic separation schemes in the Strait 
of Juan de Fuca and its Approaches; in Puget Sound and its Approaches; 
and in Haro Strait, Boundary Pass, and the Strait of Georgia. The Coast 
Guard established these traffic separation schemes under authority of 
the Ports and Waterways Safety Act.

DATES: This final rule is effective May 26, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2002-12702 and are available for inspection or 
copying at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. You may also find 
this docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-2002-12702 in the ``Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule, 
contact Mr. George Detweiler, U.S. Coast Guard Office of Navigation 
Systems, telephone 202-372-1566, or e-mail [email protected]. 
If you have questions about viewing the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Discussion of Comments and Changes
V. Regulatory Analyses
    A. Executive Order 12866 and Executive Order 13563
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

2004 Act Coast Guard and Maritime Transportation Act of 2004
ATBA Area to be Avoided
CFR Code of Federal Regulations
CTVS Cooperative Vessel Traffic Service
DHS Department of Homeland Security
FR Federal Register
IMO International Maritime Organization
NPRM Notice of Proposed Rulemaking
NOAA National Oceanic and Atmospheric Administration
PARS Port Access Route Study
PWSA Ports and Waterways Safety Act
SNPRM Supplemental Notice of Proposed Rulemaking
TSS Traffic Separation Scheme
U.S.C. United States Code
VTS vessel traffic service

II. Regulatory History

    On August 27, 2002, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled ``Traffic Separation Schemes: In the Strait 
of Juan de Fuca and its Approaches; in Puget Sound and its Approaches; 
and in Haro Strait, Boundary Pass, and the Strait of Georgia'' in the 
Federal Register (67 FR 54981). We received nine letters commenting on 
the NPRM. The commenters did not request a public meeting, and none was 
held.
    On November 19, 2010, the Coast Guard published an interim rule (75 
FR 70818) that codified existing Traffic Separation Schemes (TSSs) in 
the Strait of Juan de Fuca and its Approaches; in Puget Sound and its 
Approaches; and in Haro Strait, Boundary Pass, and the Strait of 
Georgia. The Coast Guard did not publish a Supplemental Notice of 
Proposed Rulemaking (SNPRM) for this rule, citing the Administrative 
Procedure Act ``good cause'' exception at 5 U.S.C. 553(b)(B) in the 
interim rule. The interim rule sought comments on the enumerated 
Traffic Separation Schemes. The comment period closed January 3, 2011, 
and we received no

[[Page 23192]]

public comments on the interim rule. No public meeting was requested 
and none was held. The interim rule became effective on January 18, 
2011. There are no changes from the interim rule to this final rule.

III. Basis and Purpose

    With this rule the Coast Guard finalizes the codification of the 
traffic separation schemes (TSSs) identified above. The Coast Guard 
created each of these TSSs after conducting a Port Access Route Study 
(PARS) in accordance with the Ports and Waterways Safety Act (PAWSA) 33 
U.S.C. 1221-1232. Each TSS that is part of this rulemaking is shown on 
nautical charts, is described in the United States Coast Pilot, was 
implemented by the International Maritime Organization, and is 
described in ``Ships Routeing,'' Tenth Edition, 2010. Each TSS has also 
been codified in the CFR since January 18, 2011, when the interim rule 
became effective. For a full discussion of the basis and purpose of 
this rulemaking see the interim rule (75 FR 70818, 70819).

IV. Discussion of Comments and Changes

    We received no public comments in response to our interim rule. 
Accordingly, the Coast Guard has made no changes in this final rule. A 
full discussion of the provisions of this rule may be found in the 
``Discussion of Interim Rule'' section of the interim rule. (75 FR 
70818, at 70820).

V. Regulatory Analyses

    We developed this final rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

A. Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. The Office of Management and Budget has not reviewed it 
under that Order.
    As previously discussed, the TSSs finalized by this final rule were 
codified by the interim rule, implemented by IMO, and are reflected on 
current nautical charts and in nautical publications. We anticipate no 
increased costs for vessels traveling within the aforementioned areas. 
These internationally recognized traffic separation schemes provide 
better routing order and predictability, increase maritime safety, and 
reduce the potential for collisions, groundings, and hazardous cargo 
spills.
    By finalizing the interim rule, we complete the process of 
recording the latitudes and longitudes of the TSSs' coordinates in the 
CFR tables and make it easier for the public to reference our 
regulations when recommending modifications or other operational 
considerations. This rule finalizes incorporation of the TSSs in the 
CFRs and does not impact mariner actions or expectations.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this final rule has a significant economic impact on 
a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    As this rule serves to finalize in the CFR TSSs that have already 
been implemented, we estimate that there will be no increased costs due 
to this rule.
    Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that 
this final rule does not have a significant economic impact on a 
substantial number of small entities.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking. If you believe that 
this rule affects your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult Mr. George Detweiler, Office of 
Navigation Systems, telephone 202-372-1566. The Coast Guard will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of the Coast Guard.

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them.
    We have analyzed this rule under that Order and have determined 
that it has implications of federalism. Conflict preemption principles 
apply to PWSA Title I, and the TSSs in this rule are issued under the 
authority of PWSA Title I. These TSSs are specifically intended to have 
preemptive impact over State law covering the same subject matter in 
the same geographic area.
    Title I of PWSA (33 U.S.C. 1221 et seq.) authorizes the Secretary 
to issue regulations to designate TSSs to provide safe access routes 
for the movement of vessel traffic proceeding to or from ports or 
places subject to the jurisdiction of the United States. In enacting 
the PWSA in 1972, Congress found that advance planning and consultation 
with the affected States and other stakeholders was necessary in the 
development and implementation of a TSS. Throughout the history of the 
development of the TSSs that are the subject of this rule, we consulted 
with the affected State and Federal pilots' associations, vessel 
operators, users, United States and Canadian Vessel Traffic Services, 
Canadian Coast Guard and Transport Canada representatives, 
environmental advocacy groups, Native American tribal groups, and all 
affected stakeholders.
    Presently, there are no Washington State laws or regulations 
concerning the same subjects as those contained in this rule. We 
understand that the State does not contemplate issuing any such 
regulations. It should be noted that, by virtue of the PWSA authority, 
the TSSs in this rule preempt any State rule on the same subject.
    Foreign vessel owners and operators usually become aware of TSSs 
when the TSSs are added to the United States Coast Pilot and the 
nautical charts that are required by 33 CFR 164.33 to be on each ship 
operating in U.S. waters. Foreign vessel owners and operators also 
become aware of TSSs through their national IMO delegation and IMO 
publications.

[[Page 23193]]

    The individual States of the United States are not represented at 
the IMO as that is the role of the Federal Government. The U.S. Coast 
Guard is the principal agency responsible for advancing the interests 
of the United States at the IMO. In this role, we solicit comments from 
the stakeholders through public meetings and develop a unified U.S. 
position prior to attending sessions of the IMO Subcommittee on Safety 
of Navigation and the Maritime Safety Committee where TSSs are 
discussed.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

G. Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

H. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

    We have reviewed this rule under Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments. 
Rulemakings that are determined to have ``tribal implications'' under 
that Order (i.e., those that have a substantial direct effect on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes) require the 
preparation of a tribal summary impact statement. This rule will not 
have implications of the kind envisioned under the Order because it 
will not impose substantial direct compliance costs on tribal 
governments, preempt tribal law, or substantially affect lands or 
rights held exclusively by, or on behalf of, those governments.
    Whether or not the Executive Order applies in this case, it is the 
policy of the Department of Homeland Security and the U.S. Coast Guard 
to engage in meaningful consultation and collaboration with tribal 
officials in policy decisions that have tribal implications under the 
Presidential Memorandum of November 5, 2009, (74 FR 57881, November 9, 
2009), and to seek out and consult with Native Americans on all of its 
rulemakings that may affect them. We regularly consulted and 
collaborated with the Tribes throughout the PARS and this rulemaking. 
For a complete discussion of these consultations see the interim rule 
(75 FR 70818, 70825).
    In the IR, the Coast Guard invited comments on how the codification 
of the existing TSSs might impact tribal governments, even if that 
impact may not constitute a ``tribal implication'' under the Order. We 
received no comments to our request.

K. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through the 
Office of Management and Budget, with an explanation of why using these 
standards would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., specifications of materials, performance, design, or operation; 
test methods; sampling procedures; and related management systems 
practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards, nor is the Coast Guard 
aware of the existence of any standards that address these TSSs. 
Therefore, we did not consider the use of voluntary consensus 
standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(i) of the Instruction. This rule involves 
navigational aids, which include TSSs. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 167

    Harbors, Marine safety, Navigation (water), Waterways.

    Accordingly, the interim rule amending 33 CFR part 167, subpart B, 
which was published at 75 FR 70818 on November 19, 2010, is adopted as 
a final rule.

    Dated: April 11, 2011.
Dana A. Goward,
U.S. Coast Guard, Director of Marine Transportation Systems Management.
[FR Doc. 2011-9895 Filed 4-25-11; 8:45 am]
BILLING CODE 9110-04-P