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, 70818-70831 [2010-29165]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 75, Number 223 (Friday, November 19, 2010)]
[Rules and Regulations]
[Pages 70818-70831]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29165]


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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: Interim rule with request for comments.

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SUMMARY: In this interim rule with request for comments, the Coast 
Guard codifies 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. These traffic 
separation schemes (TSSs) were validated by a Port Access Route Study 
(PARS) conducted under the Ports and Waterways Safety Act (PWSA), 33 
U.S.C. 1221-1232 and were adopted by the International Maritime 
Organization (IMO). They have been shown on National Oceanic and 
Atmospheric Administration (NOAA) charts since 2006, and are currently 
documented in the IMO publication ``Ships' Routeing,'' Ninth Edition, 
2008.
    Codifying these internationally recognized traffic separation 
schemes provides better routing order and predictability, increases 
maritime safety, and reduces the potential for collisions, groundings, 
and hazardous cargo spills.
    The Coast Guard is issuing this interim rule with a request for 
comments to permit the public to comment on changes made to some 
geographic positions located in Haro Strait, Boundary Pass, and the 
Strait of Georgia that were made after the notice of proposed 
rulemaking (NPRM).

DATES: This interim rule is effective January 18, 2011.
    Comments and related material must be received by the Coast Guard 
on or before January 3, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2002-12702 using any one of the following methods:
    (1) Federal eRulemaking Portal: https://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: 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.
    (4) Hand Delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
contact Mr. George Detweiler, U.S. Coast Guard Office of Waterways 
Management, telephone 202-372-1566, or e-mail 
George.H.Detweiler@uscg.mil. If you have questions on viewing or 
submitting material to the docket, call Ms. Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Regulatory History
IV. Basis and Purpose
    A. General
    B. TSS History
    C. Port Access Route Study (PARS)
V. Discussion of NPRM Comments
VI. Discussion of the Interim Rule (IR)
VII. Regulatory Analyses
    A. Regulatory Planning and Review
    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. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to https://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit comments, please include the docket number for this 
rulemaking (USCG-2002-12702), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a telephone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to https://www.regulations.gov and 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2002-12702'' in the ``Keyword'' 
box. Click ``Search'' then click on the balloon shape in the 
``Actions'' column. If you submit your comments by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit them 
by mail and would like to know that they reached the Facility, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period 
and may change this rule based on your comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to https://www.regulations.gov and 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2002-12702'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the Internet, you may view the document 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington,

[[Page 70819]]

DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. We have an agreement with the Department of 
Transportation to use the Docket Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the methods specified under ADDRESSES. In 
your request, explain why you believe a public meeting would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

II. Abbreviations

ATBA Area To Be Avoided
CFR Code of Federal Regulations
CVTS Cooperative Vessel Traffic Service
FR Federal Register
IMO International Maritime Organization
IR Interim Rule
NOAA National Oceanic and Atmospheric Administration
NPRM Notice of Proposed Rulemaking
PARS Port Access Route Study
PWSA Ports and Waterways Safety Act
RNA Regulated Navigation Area
TSS Traffic Separation Scheme
TEU Twenty-Foot Equivalent Unit

III. Regulatory History

    On August 27, 2002, we 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). The NPRM was originally assigned a Department 
of Transportation rulemaking identification number (RIN) 2115-AG45. It 
has been reassigned a Department of Homeland Security RIN 1625-AA48. 
The docket number has not changed. We received nine letters commenting 
on the proposed regulations discussed in the NPRM. We discuss our 
responses to these comments in Part V of this interim rule. The 
commenters did not request a public meeting, and we did not hold one.

IV. Basis and Purpose

A. General

    The Ports and Waterways Safety Act (PWSA; 33 U.S.C. 1221-1232) 
grants the Coast Guard authority to establish traffic separation 
schemes (TSSs) where necessary, to provide safe access routes for 
vessels proceeding to or from United States ports. Before implementing 
a new TSS or modifying an existing TSS, we conduct a Port Access Route 
Study (PARS). Through the PARS process, we consult with affected 
parties to reconcile the need for safe access routes with the need to 
accommodate other reasonable uses of the waterway, such as oil and gas 
exploration, deepwater port construction, establishment of marine 
sanctuaries, and recreational and commercial fishing. If a PARS 
recommends a new or modified TSS, we must initiate a rulemaking to 
implement or modify the TSS. Once a TSS has been established, the right 
of navigation takes precedence over all other uses within the TSS.
    The International Maritime Organization (IMO) follows a parallel 
structure. It receives proposals for vessel traffic measures from the 
country or countries with jurisdiction over the affected waterway. If 
the IMO adopts a proposal, it publishes the vessel traffic measure in 
its publication ``Ships Routeing.'' In this way, the IMO serves as a 
clearing agent to ensure that vessel traffic measures are made 
available to the global maritime community through a single source. 
Additionally, when the IMO adopted the TSSs, it made the provisions of 
Rule 10 of the International Regulations for Avoiding Collisions at Sea 
(COLREGS) applicable to vessels using the TSSs.

B. TSS History

    The IMO first adopted TSSs in the Strait of Juan de Fuca and its 
approaches on April 3, 1981, and implemented them January 1, 1982. The 
IMO adopted TSSs in Puget Sound and its approaches on December 1992, 
and implemented them on June 10, 1993. As discussed in C. below, on 
January 20, 1999, the Coast Guard published a PARS ``Notice of Study'' 
(64 FR 3145). We published a notice of preliminary study 
recommendations with request for comments on February 23, 2000 (65 FR 
8917). On August 27, 2002, the Coast Guard published an NPRM (66 FR 
6514) regarding the TSSs that are the subject of this rulemaking as 
discussed in Part III, ``Regulatory History'' above. However, these 
TSSs were never added to the CFR.
    As described in the NPRM, the 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 were implemented on 
December 1, 2002, per IMO Circular COLREG.2/Circ.51 dated May 31, 2002. 
To view the circular, visit the docket for this rulemaking at https://www.regulations.gov.
    Canada and the United States submitted a joint proposal to the IMO 
in March 2004 requesting minor changes to some coordinates of the TSSs 
in Puget Sound and its approaches in Haro Strait, Boundary Pass, and 
the Strait of Georgia. The IMO approved the changes and they were 
implemented on July 1, 2005, per IMO Circular COLREG.2/Circ.55 dated 
December 15, 2004. To view the circular, visit the docket for this 
rulemaking at https://www.regulations.gov.
    Canada and the United States submitted a second joint proposal to 
the IMO in March 2005, requesting additional minor changes to the 
Canadian portion of the TSSs in the Strait of Juan de Fuca and its 
approaches. The IMO approved the changes and they were implemented on 
December 1, 2006, per IMO Circular COLREG.2/Circ.57 dated May 26, 2006. 
To view the circular, visit the docket for this rulemaking at https://www.regulations.gov.
    All TSSs that would be codified by this interim rule have been 
shown in their current configuration on NOAA charts since 2006 and are 
published in ``Ships' Routeing,'' Ninth Edition, 2008, published by the 
IMO. NOAA adds or modifies TSSs on its charts after they are either 
added to the CFR by the Coast Guard or adopted by the IMO. The IMO 
Ships' Routeing instructions can be purchased from IMO through their 
Web site at https://www.imo.org.

C. Port Access Route Study (PARS)

    The Coast Guard published a notice of study on January 20, 1999, 
(64 FR 3145). The study results can be found at Regulations.gov under 
docket number USCG-1999-4974. The purpose of the study was to review 
and evaluate the need for modifications to the vessel routing and 
traffic management measures in and around the Strait of Juan de Fuca, 
including Admiralty Inlet, Haro Strait, Boundary Pass, the Strait of 
Georgia, Rosario Strait, and adjacent waters. The study area also 
outlined both United States and Canadian TSSs and the Area to be 
Avoided (ATBA) ``Off the Washington Coast.'' United States

[[Page 70820]]

and Canadian Coast Guards cooperatively manage portions of the study 
area. The countries accomplish joint waterway management primarily 
through the Cooperative Vessel Traffic Service (CVTS). A CVTS agreement 
entered into in 1979 sets forth the terms and conditions for joint 
management of the CVTS. Under the CVTS Agreement, vessel traffic 
centers located at Tofino and Victoria, British Columbia, Canada; and 
Seattle, Washington, manage vessel traffic transiting in the study 
area, regardless of the boundary between the two countries.
    We developed the PARS using several related vessel traffic studies, 
waterways analysis and management system reports, and extensive 
consultations between the United States and Canadian governments. 
Officials from both governments embarked on an outreach program to 
present recommended changes in the study area and request comments from 
a wide group of waterway users and other potentially affected and 
interested groups, including the general public; representatives of the 
shipping industry, master mariners, ports, pilots, and environmental 
interests; U.S. Federal, State, and local government agencies; Canadian 
government agencies; and tribal governments. We took into account the 
responders' concerns, including impacts to industry and the 
environment, when conducting the PARS. The recommended changes also 
considered the increased burden to and the practical navigation aspects 
for the shipping industry. We published a notice of preliminary study 
recommendations with request for comments on February 23, 2000 (65 FR 
8917). We published a notice of study results for the PARS on January 
22, 2001 (66 FR 6514).
    In the PARS, we concluded that the TSSs, as they existed prior to 
the NPRM, should be modified by:
    1. Reconfiguring and extending seaward the TSS at the entrance to 
the Strait of Juan de Fuca;
    2. Modifying the location, orientation, and dimensions of the 
Strait of Juan de Fuca TSS;
    3. Relocating the pilot area and reconfiguring the traffic lanes 
and precautionary area off Port Angeles, Washington, to improve traffic 
flow and reduce risks;
    4. Moving the vessel traffic lanes southeast of Victoria, British 
Columbia, farther offshore;
    5. Establishing precautionary areas off of Discovery Island and 
around the Victoria Pilot Station;
    6. Creating a new two-way route in Haro Strait and Boundary Pass 
and establishing a precautionary area off of Turn Point;
    7. Expanding the precautionary area designated ``RB,'' at the south 
end of Rosario Strait;
    8. Revising and aligning the existing TSS in Georgia Strait with 
the existing TSS north of Rosario Strait and linking them with a new 
precautionary area off of East Point; and
    9. Creating a new precautionary area in Georgia Strait west of 
Delta Port and the Tsawwassen Ferry terminal.

V. Discussion of NPRM Comments

    As a follow-up to the PARS, the Coast Guard published an NPRM on 
August 27, 2002 (67 FR 54981). We received nine letters in response to 
the NPRM.
    Five commenters disagreed with the proposed TSS in the Strait of 
Juan de Fuca and stated that:
    (1) The proposed TSS would cause a net loss of over 30 percent of 
fishable waters;
    (2) The proposed TSS represented a violation of certain tribal 
treaty rights that had been enjoyed by local tribes for decades; and
    (3) The proposed TSS would affect a significant number of local 
tribes.
    A sixth commenter disagreed with the modified TSS on the grounds 
that it would cause local tribes to lose a significant amount of 
fishable waters. Because of these comments, we entered into tribal 
consultations under Executive Order 13175. As a result of these 
consultations, the local tribes agreed to take no action that would 
prevent the TSSs as described in the IR from taking effect and the 
Coast Guard agreed to: (1) Make permanent existing interim Vessel 
Traffic Service measures related to the treaty longline fishery and 
treaty salmon fishery; and (2) implement a regulated navigation area 
(RNA) to further protect the tribes' interest in the area. The local 
tribes and the U.S. Government, acting through the Coast Guard, entered 
into a Settlement Agreement on April 19, 2006, to reflect the rights 
and obligations of the parties. An explanation of the consultation 
process and its results are further discussed in section VII. J., 
``Indian Tribal Governments.''
    Five commenters also proposed that we adopt a differently 
configured TSS, which they claimed would maintain safety while adding 
to the fishable area in the separation zone by 5 percent. A sixth 
commenter proposed that we revisit the TSS and come up with a new 
scheme that would not diminish fishable waters in the Strait of Juan de 
Fuca. We did not concur with the comments, but, as noted above, entered 
into tribal consultations. Ultimately, we did not reconfigure the TSSs 
as recommended by these commenters. An explanation of the consultation 
process and its results are further discussed in section VII. J., 
``Indian Tribal Governments.''
    One commenter agreed that a modified TSS is necessary in the Strait 
of Juan de Fuca, but disagreed with the new demarcation around Haro 
Strait. The same commenter proposed that the lane near the Haro Strait 
be widened so that faster ships would be able to pass slower ships in 
transit. We agreed with the commenter. The area referred to by the 
commenter is managed by the Canadian Coast Guard. Therefore, we worked 
with Canada and developed a mutually agreeable proposal that is 
currently shown on NOAA charts and IMO publications. The IR reflects 
changes to the demarcation around Haro Straight and a widening of the 
lane near Haro Straight.
    One commenter assessed the TSS in the Strait of Juan de Fuca and 
asserted that the proposed lanes would not create any new safety 
problems in the Strait. The commenter also evaluated the tribes' 
proposals and concluded that the proposed lanes would not cause any 
extra safety hazards in the Strait. We concurred with this commenter 
and did not amend the TSSs in this area.
    One commenter agreed with the proposed TSS in the Strait of Juan de 
Fuca, but advocated that we implement more stringent safety guidelines 
for oil tankers. This commenter also proposed that we provide charts of 
the modified TSSs in the Code of Federal Regulations (CFR). We did not 
concur with implementing more stringent safety guidelines for oil 
tankers in this rulemaking. Implementing more stringent safety 
guidelines for oil tankers is not within the scope of this rulemaking. 
The focus of this rule is on the codification of TSSs.
    One commenter proposed including charts of the TSSs in the CFR. We 
did not concur with providing charts of the modified TSSs in the CFR. 
Providing charts of the TSSs in the CFR would be unwieldy, difficult to 
read, and would not be useful to mariners for navigational purposes. 
All TSSs codified in this rule are reflected on current NOAA charts and 
published in the IMO's ``Ships' Routeing,'' Ninth Edition, 2008.

VI. Discussion of the Interim Rule (IR)

    This rule codifies the 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. All TSSs codified in this 
rule

[[Page 70821]]

are shown on current NOAA charts and are published in ``Ships' 
Routeing,'' Ninth Edition, 2008, International Maritime Organization. 
The TSSs codified in this rule, except as explained in paragraph 10 
below, ``Adjustment of TSSs in the IR,'' are based on the 
recommendations of the PARS study published on January 22, 2001 (66 FR 
6514).
    1. Reconfiguring and extending seaward the TSS at the entrance to 
the Strait of Juan de Fuca. In August 2002, all traffic entering the 
Strait of Juan de Fuca was funneled into the Strait through one of two 
short traffic lanes. The southwest inbound traffic lane directed 
traffic within 1 mile of Duntze Rock. This convergence near Buoy Juliet 
was close to the rocky shoreline of Cape Flattery, lay within the 
Olympic Coast National Marine Sanctuary, and funneled inbound southern 
traffic along the northern and western borders of the existing ATBA.
    A large percentage of the slower traffic, including tugs and barges 
and small fishing vessels, usually transited inbound and outbound south 
of the designated traffic lanes when on coastwise voyages to and from 
the south. This practice eliminated the need for slower southbound 
traffic to cross the traffic lanes and the potentially dangerous 
overtaking situations arising from disparate transit speeds. However, 
under the configuration as of August 2002, this traffic scheme forced 
slower traffic to transit extremely close to Duntze Rock and infringed 
on either the ATBA or the inbound traffic lane.
    Commercial and sport fishing areas were in and adjacent to the 
traffic lanes at the entrance to the Strait. Occasionally, fishing 
vessels in the area created a potentially hazardous conflict for 
vessels following the TSS, particularly during periods of reduced 
visibility.
    This interim rule with request for comments extends the TSS at the 
entrance to the Strait approximately 10 nautical miles farther offshore 
and centers the separation zone on the international border at the 
entrance. This creates a ``buffer zone'' between the southernmost TSS 
lane and Duntze Rock and the nearby ATBA. This relocation provides 
ample maneuvering space for resolving conflicting routes as vessels 
converge toward the entrance of the Strait, which improves order and 
predictability for all entry and exit lanes. These changes, along with 
changes for the ATBA boundary, allow sufficient room for slower vessels 
to transit without conflicting with inbound traffic steering for the 
southern approach to the TSS. They also provide a greater margin of 
safety around the hazards of Duntze Rock and Tatoosh Island.
    In reconfiguring and extending the TSSs beyond the configuration as 
it existed in August 2002, we considered the location of fishing areas 
off the entrance to the Strait. While it was not possible to completely 
segregate the TSS from the fishing areas, the changes minimize 
potential conflicts and improve the existing configuration. 
Reconfiguring and extending the routes provides predictability farther 
offshore, thereby reducing potentially hazardous conflicts between 
vessels following the TSS and vessels fishing at the entrance to the 
Strait.
    2. Modifying the location, orientation, and dimensions of the TSS 
in the Strait of Juan de Fuca. In August 2002, over two-thirds of the 
TSS was located on the United States side of the International 
Boundary. The separation zone was approximately four nautical miles 
wide, of which approximately three nautical miles was in United States 
waters. This alignment of the TSS reduced the amount of navigable water 
available to vessels transiting, outbound or inbound, south of the TSS 
and placed inbound traffic following the lanes closer to land than 
vessels transiting in the outbound lanes.
    In this interim rule with request for comments, the western segment 
of the TSS shifts one-half mile to the north and reduces the width of 
the entire separation zone to a maximum of three nautical miles. The 
minimum width of the separation zone and the width of the traffic lanes 
remains one nautical mile. This reduces the potential for powered 
groundings on the United States shoreline by creating a larger buffer 
between the TSS and shore. It also creates additional space for the 
existing in-shore vessel traffic that transits south of the TSS.
    We considered the impact of the changes on the existing Canadian 
Practice Firing Range (Exercise Area WH). Exercises will continue to be 
conducted in a manner that does not conflict with commercial traffic 
following the TSS.
    3. Relocating the Pilot Area and reconfiguring the traffic lanes 
and precautionary area off Port Angeles to improve traffic flow and 
reduce risks. In August 2002, five TSSs converged at the precautionary 
areas (``PA'' and ``ND'') located to the north and east of Port 
Angeles. Ferries, recreational vessels, piloted deep-draft vessels, 
non-piloted deep-draft vessels, tugs and tows, naval vessels, and large 
and small commercial fishing vessels all interacted and competed for 
space at this convergence point in the traffic scheme.
    The traffic configuration was designed primarily to deliver inbound 
vessels to the pilot stations located at Port Angeles, Washington; and 
Victoria, British Columbia. The configuration did not give adequate 
safety consideration to other waterway users. For example, the 
configuration did not separate the Port Angeles pilots' boarding area 
from either the through traffic following the TSS or the traffic 
choosing to follow the informal inshore traffic lanes. The August 2002 
TSS routing leading to the Port Angeles pilot station was identified 
through casualty histories as a substantial cause for concern. Vessels 
bound for the Port Angeles pilots' station were required by the TSS to 
steer almost directly on Ediz Hook. To pick up a pilot, a vessel first 
had to execute a 60-degree turn and then slow to maneuvering speed, 
which created different impacts on the vessel's steering capability. At 
this point, a vessel was particularly vulnerable to currents and seas. 
If an engineering failure occurred during this operation, the vessel 
was at significant risk of a drift or powered grounding on Ediz Hook.
    Since publication of the NPRM in August 2002 the pilot station has 
been relocated. Changing the traffic lane leading to the relocated 
pilot station eliminated the need for an incoming deep-draft vessel to 
steer directly toward Ediz Hook to pick up a pilot. The IR also adds a 
new east/west TSS leading east from precautionary area ``PA'' to 
establish a predictable route for vessels that do not require pilotage, 
thus reducing the risk of collision with vessels maneuvering to pick up 
a pilot.
    4. Moving the vessel traffic lanes southeast of Victoria, British 
Columbia, farther off shore. In August 2002, on the Canadian side of 
the international boundary, outbound tugs and barges exited the TSS at 
Discovery Island. These vessels headed directly for the inshore routes 
south of Race Rocks, cutting across the inbound and outbound TSS lanes 
south of Victoria. Outbound fishing vessels, exiting Baynes Channel or 
passing east of Discovery Island, attempted to stay north of the TSS. 
However, vessels frequently entered the lanes near Trial Island, 
Discovery Island, and the pilot station. This behavior created 
unnecessary and potentially dangerous interactions between deep-draft 
vessels following the TSS and smaller vessels that choose to skirt or 
cut diagonally across the TSS.
    In the IR we move the vessel traffic lanes to create an inshore 
buffer by decreasing the width of the TSS leading

[[Page 70822]]

from the Victoria Pilot Station to the turn south of Discovery Island 
while maintaining the same southern boundary on the inbound lane. This 
inshore buffer allows fishing vessels and other small, slow moving 
vessels to transit directly between Discovery Island and Race Rocks, 
then inshore north of the TSS, while avoiding the deep-draft TSS.
    5. Establishing precautionary areas off Discovery Island and around 
the Victoria Pilot Station. In August 2002, the Victoria Pilot Station 
was located at the convergence of two TSSs where there was significant 
traffic congestion as vessels transited to and from the ports of 
Victoria and Esquimault. Likewise, three TSSs converged east and 
northeast of Discovery Island, where vessels often entered or exited 
the traffic scheme. Consequently, vessels had to proceed with caution 
in both these areas. To address the traffic congestion in these areas 
this IR establishes new precautionary areas ``V'', ``HS,'' and ``DI.''
    6. Creating a new two-way route in Haro Strait and Boundary Pass 
and establishing a precautionary area off Turn Point. In August 2002, 
there were no formal traffic lanes in Haro Strait and Boundary Pass. In 
recent years, the level of recreational boating has significantly 
increased. Also, there has been explosive growth in the number of small 
commercial vessels providing whale-watching tours off the western shore 
of San Juan Island. This growth in the number of whale-watching tours 
has resulted in an increased number of conflicts with deep-draft 
vessels.
    Turn Point is one of the more navigationally challenging areas of 
Haro Strait and Boundary Pass. Transiting vessels must negotiate a 
blind right-angle turn close to shore and in the presence of strong 
currents. In addition, numerous secondary channels and passages route 
traffic into Haro Strait in the vicinity of Turn Point.
    This rule establishes a two-way route in Haro Strait and Boundary 
Pass that connects the TSS in Puget Sound and its approaches and the 
TSS Haro Strait and Boundary Pass in the south. This rule increases 
order and predictability for vessel traffic in these waters. The route 
established by this IR reduces dangerous interactions between the deep-
draft vessels following the TSS and smaller vessels that choose not to 
follow the TSS. The regulation moves the edge of the traffic lane to 
the east from Kellet Bluff to Turn Point and creates a flair, or pull 
out, south of Turn Point to provide maneuvering room for a vessel to 
safely negotiate the strong ebb currents. The regulation also creates a 
precautionary area around Turn Point where vessels must negotiate a 
sight-obscured, right-angle turn in the presence of strong currents and 
numerous small craft.
    7. Expanding precautionary area ``RB'' at the south end of Rosario 
Strait. In August 2002, deep-draft vessels often could not precisely 
follow the TSS when approaching Rosario Strait from the south. Strong 
currents made it impossible for vessels to avoid the separation zone as 
they negotiated the slight turns in the TSS just south of precautionary 
area ``RB.'' The small turns in the TSS approaching precautionary area 
``RB'' could not be eliminated without placing the TSS uncomfortably 
close to other shoal water.
    This rule replaces a small portion of the lane with an expansion of 
precautionary area ``RB.'' The regulation enhances the safety of deep-
draft transits by eliminating a routing measure where large ships 
cannot comply and replacing it with a precautionary area where ships 
must navigate with particular caution.
    8. Revising and aligning the TSS in the Strait of Georgia with the 
exiting TSS north of Rosario Strait and linking them with a 
precautionary area off East Point. In August 2002, there were no 
routing measures connecting the TSS in the Strait of Georgia that 
terminated off Patos Island with the TSS north of Rosario Strait that 
terminated off Saturna Island. Furthermore, these two TSSs were not 
aligned. Traffic exiting the Strait of Georgia bound for Rosario Strait 
followed the TSS to its termination before angling back to the north to 
enter the TSS at Patos Island. Routing vessels in this manner crowded 
the area and created a possible conflict with traffic southbound for 
Boundary Pass. Finally, there was no precautionary area in the vicinity 
of East Point where traffic merged from several directions.
    This rule creates a seamless and logical traffic scheme for this 
area. TSSs are aligned and connected to the new two-way route in 
Boundary Pass through the creation of a new precautionary area. By 
providing a contiguous TSS that connects the Strait of Georgia TSS with 
both the new Boundary Pass traffic lane and the old Patos Island TSS, 
this rule will allow traffic bound for Rosario Strait to follow the TSS 
without impeding traffic southbound for Boundary Pass. The new 
precautionary area highlights the need for potential crossing traffic 
in this area to exercise caution and provides oil tankers departing 
Cherry Point bound for Haro Strait with a predictable and safe location 
to enter the traffic scheme.
    9. Creating a new precautionary area in Georgia Strait west of 
Delta Port and the Tsawwassen Ferry Terminal. The completion of the 
container facility at Delta Port significantly increased the volume of 
traffic entering and exiting the TSS in the Strait of Georgia. There 
has also been a considerable increase in traffic to and from the 
Tsawwassen Ferry Terminal. This rule establishes a precautionary area 
southwest of Delta Port and accommodates vessels departing Delta Port 
and the Tsawwassen Ferry Terminal, as they reach maneuvering speed 
before and while entering the TSS.
    10. Adjustment of TSSs in the IR. This IR adjusts the configuration 
of certain TSSs as proposed in the NPRM. The TSSs have some coordinates 
located in United States waters and some coordinates located in 
Canadian waters. As discussed above, the United States and Canada 
cooperatively manage vessel traffic in this area. Since publication of 
the NPRM in August 2002, the United States and Canada have jointly 
submitted two proposals to make adjustments to geographical coordinates 
located in Canadian waters. Both proposals were approved and are 
reflected on current NOAA charts and published in the IMO's ``Ships' 
Routeing,'' Ninth Edition, 2008.
    Since publication of the NPRM there have been changes to some of 
the geographical coordinates located in both Canadian and U.S. waters. 
Issuing an IR allows the Coast Guard to codify the coordinates of the 
TSSs as currently shown on NOAA charts and IMO publications but also 
solicit public comment on the adjustments that occurred since 
publication of the NPRM.
    As discussed above, the Coast Guard published a NPRM for the TSSs 
in 2002. Subsequently, the U.S. and Canada have jointly submitted two 
proposals to change some of the coordinates. Both proposals were 
adopted by the IMO (IMO Circular COLREG.2/Cir.55 dated December 15, 
2004 and IMO Circular COLREG.2/Circ. 57 dated May 26, 2006). The Coast 
Guard did not publish a supplemental notice of proposed rulemaking 
(SNPRM) for these changes. Under 5 U.S.C. 553(b)(B), the Coast Guard 
finds that good cause exists for not publishing an SNPRM. Under the 
Administrative Procedure Act (APA) ``good cause'' exception in 5 U.S.C. 
553(b)(B), an agency may dispense with notice and comment procedures if 
the agency finds that following these APA requirements would be 
``impracticable, unnecessary, or contrary to the public interest.'' See 
Jeffrey L. Lubbers, A Guide to Federal Agency Rulemaking

[[Page 70823]]

(4th ed.) 105-109 (2006) for a discussion of agency findings of good 
cause in lieu of notice and comment procedures.
    ``Unnecessary,'' for the purpose of the good cause exceptions to 
the requirements of the APA, refers to ``the issuance of a minor rule 
in which the public is not particularly interested.'' United States 
Department of Justice, Attorney General's Manual On The Administrative 
Procedure Act at 31 (1947). Its use should be ``confined to those 
situations in which the administrative rule is a routine determination, 
insignificant in nature and impact, and inconsequential to the industry 
and to the public.'' Utility Solid Waste Activities Group v. EPA, 236 
F.3d 749, 755 (DC Cir. 2001), citing South Carolina v. Block, 558 
F.Supp. 1004,1016 (D.S.C. 1983). Participation in a TSS by a ship's 
master is completely voluntary. Participation in a voluntary scheme 
does not impose a new requirement on mariners and therefore 
incorporation of the TSSs into the CFR is insignificant in nature and 
impact.
    Including the TSSs in the CFR at this point is also inconsequential 
to the maritime industry and to the public because the maritime 
industry and the public have been aware of, and in fact actively using, 
the proposed TSSs for at least four years. The IR merely seeks to 
incorporate into the CFR the same TSSs that have been in use since 2006 
when the current configurations first appeared on NOAA charts and in 
IMO publications. There have been no comments, complaints, or requests 
for modification regarding the TSSs since that time. As the agency 
charged with the establishment of TSSs, the Coast Guard would be aware 
of any such comments, complaints or requests.
    Courts prefer supplemental notice and comment when the public is 
likely to have new or different information.\1\ The proposed TSSs are 
unchanged from the current familiar configuration. Therefore, as there 
is little or no likelihood that the public has new or different 
information than what is currently available, there is no reason to 
delay reaching a timely and final decision by engaging in an 
unnecessary second round of public comment.
---------------------------------------------------------------------------

    \1\ Idaho Farm Bureau Fed'n v. Babbit, 58 F.3d 1392 (9th Cir. 
1995).
---------------------------------------------------------------------------

    Additional notice and comment is contrary to the public interest: 
As stated above, courts prefer supplemental notice and comment.\2\ 
However, they have also made clear that this preference should be 
balanced against the public's interest in reaching a timely and final 
decision without unnecessary or duplicative rounds of public 
comment.\3\
---------------------------------------------------------------------------

    \2\ Idaho Farm Bureau Fed'n v. Babbit, supra.
    \3\ AFL-CIO v. Office of Personnel Management, 618 F. Supp. 1254 
(D.D.C. 1985); and Public Citizen Health Research Group v. F.D.A., 
724 F. Supp. 1013, 1022 (D.D.C. 1989).
---------------------------------------------------------------------------

    In the current rule, the public's interest to reach a timely and 
final decision without unnecessary or duplicative rounds of public 
comment outweighs the preference for additional notice and comment 
because the public is not likely to have new or different information. 
In fact, not only is it unlikely the public will have any new or 
different information, but the public is no longer interested in 
changes to this rule. As far as the public is concerned, these TSSs 
have been in active use for over four years. There have been no 
comments, complaints, or requests for modification. Therefore, an SNPRM 
is contrary to the public interest in that it defeats the public's 
interest in reaching a timely and final decision.
    The table of changes below highlights those coordinates that have 
changed since the NPRM. If we receive comments on those changes, we 
will consult with the Canadian Coast Guard regarding those comments.

                            Table of Changes
------------------------------------------------------------------------
                                   Geographical position coordinates
   Section No. in the NPRM   -------------------------------------------
                              Proposed in the NPRM      IR adjustment
------------------------------------------------------------------------
167.1301(b).................  48[deg]31.09' N;      48[deg]32.09' N;
                               125[deg]04.67' W.     125[deg]04.67' W.
                              48[deg]31.93' N;      48[deg]32.09' N;
                               125[deg]09.00' W.     125[deg]08.98' W.
167.1303....................  48[deg]31.09' N;      48[deg]32.09' N;
                               125[deg]04.67' W.     125[deg]04.67' W
                                                     (point listed
                                                     twice).
                              48[deg]31.09' N;      48[deg]32.09' N;
                               125[deg]00.00' W.     125[deg]00.00' W.
167.1311(b)(1)..............  48[deg]31.09' N;      48[deg]32.09' N;
                               124[deg]47.13' W.     124[deg]49.90' W.
                              48[deg]31.09' N;      48[deg]32.09' N;
                               125[deg]00.00' W.     125[deg]00.00' W.
167.1311(b)(2)..............  48[deg]31.09' N;      48[deg]32.09' N;
                               124[deg]47.13' W.     124[deg]49.90' W
                                                     (point listed
                                                     twice).
                              48[deg]31.09' N;      48[deg]32.09' N;
                               125[deg]00.00' W.     125[deg]00.00' W.
167.1322(c)(1)..............  48[deg]27.79' N;      48[deg]28.72' N;
                               123[deg]07.80' W.     123[deg]08.53' W.
                              48[deg]27.58' N;      48[deg]28.39' N;
                               123[deg]08.10' W.     123[deg]08.64' W.
167.1322(c)(3)..............  48[deg]28.15' N;      48[deg]29.28' N;
                               123[deg]07.31' W.     123[deg]08.35' W.
167.1322(c)(5)..............  48[deg]27.43' N;      48[deg]27.86' N;
                               123[deg]08.94' W.     123[deg]08.81' W.
167.1331....................  All geographical      ....................
                               positions are
                               changed. A new
                               precautionary area
                               ``DI'' has been
                               added to the
                               regulations.
167.1332(e).................  49[deg]00.37' N;      49[deg]02.20' N;
                               123[deg]13.32' W.     123[deg]16.28' W.
                              48[deg]58.18' N;      49[deg]00.00' N;
                               123[deg]16.74' W.     123[deg]19.69' W.
167.1332(f).................  48[deg]59.53' N;      49[deg]01.39' N;
                               123[deg]14.66' W.     123[deg]17.53' W.
                              49[deg]03.80' N;      49[deg]03.84' N;
                               123[deg]21.24' W.     123[deg]21.30' W.
                              49[deg]03.14' N;      49[deg]03.24' N;
                               123[deg]22.26' W.     123[deg]22.41' W.
                              48[deg]58.90' N;      49[deg]03.24' N;
                               123[deg]15.63' W.     123[deg]22.41' W.
                                                    49[deg]00.75' N;
                                                     123[deg]18.52' W.
167.1332(g).................  49[deg]00.37' N;      49[deg]02.20' N;
                               123[deg]13.32' W.     123[deg]16.28' W.
167.1332(h).................  48[deg]58.18' N;      49[deg]00.00' N;
                               123[deg]16.74' W.     123[deg]19.69' W.
------------------------------------------------------------------------

VII. Regulatory Analyses

    We developed this interim 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.

[[Page 70824]]

A. Regulatory Planning and Review

    This interim rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
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.
    Public comments on the NPRM are summarized in Part V of this 
preamble. Since the publication of the NPRM, some geographical 
coordinates in Canadian waters were modified. The local tribal 
governments and the Coast Guard have reached an agreement relative to 
the TSSs as described in this preamble. An explanation of the 
consultation process and its results are further discussed in section 
VII.J., ``Indian Tribal Governments.'' We anticipate that the 
modifications to the TSSs made in consultation with the Indian Tribal 
governments do not alter our assessment of economic impacts in the 
NPRM.
    We received no further public comments and have made no other 
changes that would alter our assessment of economic impacts in the 
NPRM. We have found no additional data or information that would change 
our findings in the NPRM. We have adopted the assessment in the NPRM 
for this interim rule.
    As previously discussed, the TSSs codified in this IR are reflected 
on current NOAA charts and published in the IMO's publication ``Ships' 
Routeing,'' Ninth Edition, 2008.
    As discussed in the NPRM, this rulemaking may result in a slight 
increase in transit time because it codifies the extension of the TSS 
at the entrance of the Strait of Juan de Fuca approximately 10 miles 
farther offshore. The additional 10-mile transit coming to or from the 
Strait of Juan de Fuca through the southwestern approach may result in 
a minimal increase in regulatory costs to industry.
    We anticipate no increased costs for vessels traveling within the 
Strait of Juan de Fuca and adjacent waterways, nor any increased costs 
due to modifications of the TSSs in Puget Sound and its approaches.
    The expected benefits associated with codifying the existing TSSs 
include a potential reduction in the instances of groundings, 
collisions, and other vessel casualties, as well as an increase in 
vessel traffic efficiency.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this interim 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.
    In the NPRM, we certified under 5 U.S.C. 605(b) that the proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. We received no public comments and have made 
no changes that would alter our assessment of impacts to small entities 
in the NPRM. We have found no additional data or information that would 
change our findings in the NPRM. See the ``Small Entity'' section of 
the NPRM for additional details.
    Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that 
this interim 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 offered to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If you believe 
this rule affects your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult George Detweiler, Coast Guard, 
Marine Transportation Specialist, at 202-372-1566. The U.S. Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the U.S. 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 does not have implications for 
federalism.
    The PWSA authorizes the Secretary of Homeland Security to issue 
regulations to designate TSSs to protect the marine environment. 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 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, 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.
    In order for TSSs to apply to foreign-flagged vessels on the high 
seas, the IMO must adopt and implement the TSSs. The individual States 
of the United States are not represented at the IMO; 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. We recognize the interests of all local stakeholders as we work 
with the IMO to advance the goals of these TSSs.

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 expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

[[Page 70825]]

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

    At least four Native American tribes, the Jamestown S'Klallam 
Tribe, Lower Elwha Kallam Tribe, Makah Tribe, and Port Gamble S'Klallam 
Tribe (the Tribes), have traditionally fished in the Strait of Juan de 
Fuca and its approaches. The TSSs in the Strait, as it existed when we 
published a notice of study on January 20, 1999 (64 FR 3145), provided 
a broad separation zone, which allowed ample room for the Tribes' 
traditional longline and drift gillnet fisheries between the inbound 
and outbound vessel traffic lanes.
    We published a Notice of Preliminary Study Recommendations with 
request for comments on February 23, 2000 (65 FR 8917). That notice 
contained the recommendation that the broad separation zone be narrowed 
and aligned with the international border. Implementation of that 
recommendation would straighten the routes for vessels transiting the 
TSS and move them farther north of Olympic Peninsula. The Tribes 
objected to this recommendation because they believed it would 
significantly decrease the area available to fish by leaving 
insufficient room to deploy their nets without interfering with, or 
being interfered by, deep-draft vessels transiting the Strait. To 
address their concerns, we met with the Tribes in March and August of 
2000 and February of 2001. The meetings were intended to gather the 
Tribes' recommendations on how to improve the TSSs, yet minimize the 
impact on their longline and drift gillnet fisheries. Following these 
meetings, the Tribes submitted recommendations to widen the separation 
zone. Based on these submittals and discussions at the meetings, we 
reassessed the PARS recommendation and widened the proposed zone enough 
to support the Tribes' longline and drift gillnet fisheries.
    On August 27, 2002, we published an NPRM in the Federal Register 
(67 FR 54981), which proposed amending the then existing TSSs in the 
Strait. The decision to amend the then existing TSSs was based on a 
1999-2000 PARS conducted by the Thirteenth Coast Guard District Office, 
Seattle, Washington. We used the PARS process, which included many 
consultations and meetings with various maritime entities, including 
the Tribes, to develop the proposals presented in the NPRM. When 
developing the proposed changes to the TSSs, we considered the location 
of the usual and accustomed fishing grounds off the entrance to and in 
the Strait of Juan de Fuca. We knew then that it was not possible to 
completely segregate the TSSs from the fishing grounds, but believed 
that the recommended changes would minimize potential conflicts and 
improve the TSSs configurations. We also believed that the proposed 
changes would provide better routing order and predictability, 
particularly offshore, thus reducing conflicts between vessels fishing 
at or near the entrance to the Strait and other vessel traffic. Based 
on the recommendations of the PARS, we submitted a proposal to the IMO, 
which included changes to the TSSs at the entrance to and in the 
Strait. The IMO adopted the changes, which were scheduled to take 
effect on December 1, 2002.
    As discussed in Part V. ``Discussion of Comments'' above, the 
Tribes submitted comments to the NPRM docket stating that the proposed 
changes to the TSSs would substantially alter and diminish the Tribes' 
present and future fish harvests, as well as significantly reduce 
access to their usual and accustomed fishing areas. The Tribes asserted 
that this diminished access to the usual and accustomed fishing areas 
would diminish catches. They stated that diminished catches would 
impose substantial economic and non-economic costs on the Tribes and 
would constitute a substantial impact on the Tribes' treaty-protected 
rights to take fish at all usual and accustomed fishing areas. On 
November 8, 2002, out of concern that the proposed changes were 
scheduled to take effect on December 1, 2002, the Tribes sent the 
United States a request to meet and confer.
    After discussions between the Tribes and the U.S. Coast Guard, the 
Tribes agreed to take no action to prevent the TSSs, as amended by the 
PARS and adopted by IMO, from taking effect on December 1, 2002. The 
Tribes and the U.S. Coast Guard further agreed to enter into additional 
consultations and to make best efforts to arrive at a mutually 
acceptable TSS in the Western Strait of Juan de Fuca. We agreed that if 
agreement on a revised TSS was not reached by March 15, 2003, the U.S. 
Coast Guard would take the necessary measures both to suspend TSS 
between Buoy Juliet and the precautionary area of Port Angeles [as 
amended by the PARS and adopted by IMO] and to implement a domestic TSS 
that would return the southern boundary of the traffic separation zone 
to its original location.
    The first consultation meeting between the Tribes and the United 
States acting through the U.S. Coast Guard was held on December 18, 
2002, at the Point No Point Treaty Council offices. Additional 
consultation meetings also took place. These consultation meetings 
resulted in mutually agreeable, interim VTS measures that were intended 
to allow treaty fishing within the original TSS while the parties 
negotiated a more permanent solution to the TSS issue. The interim VTS 
measures were used in 2003 to ensure the successful completion of the 
treaty longline and drift gillnet fisheries.
    At the consultation meeting on October 10, 2003, the parties agreed 
that implementation of the interim VTS measures on a permanent basis 
would better serve the interests of both the Tribes and the U.S. Coast 
Guard than revisions to the TSSs. The Tribes asked the U.S. Coast Guard 
to enter into a settlement agreement to provide the Tribes with 
assurance that the interim VTS measures that had been successfully used 
in 2003 would be made permanent, while providing procedures that would 
allow changes to these permanent VTS measures with the agreement of all 
affected Parties should it become necessary to do so.
    On April 19, 2006, the United States, acting through the U.S. Coast 
Guard, and the Tribes, signed a settlement agreement. The document, 
entitled ``Settlement Agreement Between the United States of America 
and the Jamestown S'Klallam Tribe, Lower Elwha Klallam Tribe, Makah 
Tribe, and Port Gamble S'Khallam Tribe,'' is available in the docket 
for this IR, and can be found by following the instructions listed 
above in section I.B., ``Viewing comments and documents.'' A provision 
of the settlement agreement required the U.S. Coast Guard to create 
regulations establishing a regulated navigation area (RNA), to be 
published

[[Page 70826]]

in 33 CFR part 165. 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. 
We entered into a settlement agreement to mitigate the effects of this 
rule on the Tribes and their use of their historical fishing grounds. 
We invite your 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.

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 (NTTAA) (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. 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), and Waterways.

0
Accordingly, 33 CFR Part 167 is amended as follows:

PART 167--OFFSHORE TRAFFIC SEPARATION SCHEMES

0
1. The authority citation for part 167 continues to read as follows:

    Authority:  33 U.S.C. 1223; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec. Sec.  167.1300 through 167.1303 to read as follows:


Sec.  167.1300  In the approaches to the Strait of Juan de Fuca: 
General.

    The traffic separation scheme for the approaches to the Strait of 
Juan de Fuca consists of three parts: the western approach, the 
southwestern approach, and precautionary area ``JF.'' These parts are 
described in Sec. Sec.  167.1301 through 167.1303. The geographic 
coordinates in Sec. Sec.  167.1301 through 167.1303 are defined using 
North American Datum (NAD 83).


Sec.  167.1301  In the approaches to the Strait of Juan de Fuca: 
Western approach.

    In the western approach to the Strait of Juan de Fuca, the 
following are established:
    (a) A separation zone bounded by a line connecting the following 
geographical positions:

Latitude                             Longitude
 
48[deg]30.10' N                      125[deg]09.00' W
48[deg]30.10' N                      125[deg]04.67' W
48[deg]29.11' N                      125[deg]04.67' W
48[deg]29.11' N                      125[deg]09.00' W
 

    (b) A traffic lane for westbound traffic between the separation 
zone and a line connecting the following geographical positions:

Latitude                             Longitude
 
48[deg]32.09' N                      125[deg]04.67' W
48[deg]32.09' N                      125[deg]08.98' W
 

    (c) A traffic lane for eastbound traffic between the separation 
zone and a line connecting the following geographical pos