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

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.

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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]

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