[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76280-76282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30742]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0747]
RIN 1625-AA11


Regulated Navigation Area; Thea Foss and Wheeler-Osgood Waterways 
EPA Superfund Cleanup Site, Commencement Bay, Tacoma, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent regulated 
navigation area (RNA) on portions of the Thea Foss and Wheeler-Osgood 
Waterways in Commencement Bay, Tacoma, Washington. The RNA will protect 
the seabed in portions of those waterways that are subject to the U.S. 
Environmental Protection Agency's (EPA's) Commencement Bay Nearshore/
Tideflats superfund cleanup remediation efforts. This RNA will prohibit 
activities that would disturb the seabed, such as anchoring, dragging, 
trawling, spudding or other activities that involve disrupting the 
integrity of the cap. It would not affect transit or navigation of the 
area.

DATES: This rule is effective January 7, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-0747 and are available online by going to 
http://www.regulations.gov, inserting USCG-2008-0747 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail LTJG Ashley Wanzer, Waterways Management, Sector Puget 
Sound, Coast Guard; telephone 206-217-6175, e-mail 
<a href="/cdn-cgi/l/email-protection#41122422352e3312242035352d2416160c01343222266f2c282d"><span class="__cf_email__" data-cfemail="1f4c7a7c6b706d4c7a7e6b6b737a4848525f6a6c7c7831727673">[email protected]</span></a>. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On June 2, 2010, we published a supplemental notice of proposed 
rulemaking (SNPRM) entitled Regulated Navigation Area; Thea Foss and 
Wheeler-Osgood Waterways EPA Superfund Cleanup Site, Commencement Bay, 
Tacoma, WA in the Federal Register (75 FR 105). We received no comments 
on the proposed rule. We did not receive any comments requesting a 
public meeting and we did not hold a public meeting.

Basis and Purpose

    The basis for this rulemaking is the Coast Guard's authority, as 
delegated by the Secretary of Homeland Security, to establish RNAs 
under 33 U.S.C. 1226, 1231; 46 U.S.C. 701, 3306, 3703; 50 U.S.C. 191, 
195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 
2064; DHS Delegation No. 0170.1. The purpose of this RNA is to preserve 
the integrity of the clean sediment caps placed over certain areas of 
the Thea Foss and Wheeler-Osgood Waterways as part of the EPA's 
Commencement Bay Nearshore/Tideflats superfund cleanup remediation 
process in those waters. These caps consist of approximately three feet 
of sand and gravel, designed to withstand activities common to a 
working waterfront, covering approximately 30 acres of sediment in the 
waterway.
    This RNA would prohibit activities that could disturb the seabed or 
the sediment caps, such as anchoring, dragging, trawling, or spudding. 
It would not affect transit or navigation of the area.

Background

    On August 20, 2008, we published a notice of proposed rulemaking 
(NPRM; 73 FR 162) to establish a regulated navigation area on a portion 
of the Thea Foss and Wheeler-Osgood Waterways, Commencement Bay, 
Tacoma, WA. On June 2, 2010, we published an SNPRM which revised the 
coordinates for this regulated navigation area and incorporated 
revisions for waiver requests per public comment on the initial notice 
of proposed rulemaking.

Discussion of Comments and Changes

    We received no comments on the NPRM or SNPRM.

Regulatory Analyses

    We developed this 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.

Regulatory Planning and Review

    This 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.
    This rule is not a significant regulatory action because this RNA 
encompasses a small area and does not impact commercial or recreational 
traffic, and prohibited activities are not routine for the designated 
areas.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have 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.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule may affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to anchor, 
dredge, spud, lay cable or disturb the seabed in any fashion in any of 
the areas outlined by this regulation. The RNA would not have a 
significant economic impact on small entities due to its minimal 
restrictive area and ample opportunities for avoiding this region.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement

[[Page 76281]]

Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

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).

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.

Unfunded Mandates Reform Act

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

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.

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.

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.

Indian Tribal Governments

    This rule does not have Tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not 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.

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.

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.

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 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(g.), 
of the Instruction. This rule involves a regulated navigation area 
which prevents activities which would disturb the seabed within the 
areas outlined in this regulation. 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 165

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


0
For the reasons discussed in the preamble, the Coast Guard proposes to 
amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.1329 to read as follows:


Sec.  165.1329  Regulated Navigation Area; Thea Foss and Wheeler-Osgood 
Waterways EPA Superfund Cleanup Site, Commencement Bay, Tacoma, WA.

    (a) Regulated Areas. The following areas are regulated navigation 
areas:
    (1) All waters of the Thea Foss Waterway bounded by a line 
connecting the following points: Point 1: 47[deg]15'43.49'' N, 
122[deg]26'23.29'' W; Point 2: 47[deg]15'44.59'' N, 122[deg]26'19.89'' 
W; Point 3: 47[deg]15'39.01'' N, 122[deg]26'15.99'' W; Point 4: 
47[deg]15'37.91'' N, 122[deg]26'19.39'' W. [Datum: NAD 1983].
    (2) All waters of the Thea Foss Waterway bounded by a line 
connecting the following points: Point 1: 47[deg]15'22.74'' N, 
122[deg]25'57.15'' W; Point 2: 47[deg]15'22.52'' N, 122[deg]26'0.18'' 
W; Point 3: 47[deg]15'18.05'' N, 122[deg]25'59.48'' W; Point 4: 
47[deg]15'18.26'' N, 122[deg]25'56.45'' W. [Datum: NAD 1983].

[[Page 76282]]

    (3) All waters of the Thea Foss and Wheeler-Osgood Waterways south 
of a line bounded by connecting the following points: Point 1: 
47[deg]15'13.94'' N, 122[deg]26'05.56'' W; Point 2: 47[deg]15'15.01'' 
N, 122[deg]25'55.14'' W. [Datum: NAD 1983].
    (b) Regulations. (1) All vessels and persons are prohibited from 
activities that would disturb the seabed, such as anchoring, dragging, 
trawling, spudding, or other activities that involve disrupting the 
integrity of the sediment caps installed in the designated regulated 
navigation area, pursuant to the remediation efforts of the U.S. 
Environmental Protection Agency (EPA) and others in the Thea Foss and 
Wheeler-Osgood Waterways EPA superfund cleanup site. Vessels may 
otherwise transit or navigate within this area without reservation.
    (2) The prohibition described in paragraph (b)(1) of this section 
does not apply to vessels or persons engaged in activities associated 
with remediation efforts in the Thea Foss or Wheeler-Osgood Waterways 
superfund sites, provided that the Captain of the Port, Puget Sound 
(COTP), is given advance notice of those activities by the EPA.
    (c) Waiver. Upon written request stating the need and proposed 
conditions of the waiver, and any proposed precautionary measures, the 
COTP may authorize a waiver from this section if the COTP determines 
that the activity for which the waiver is sought can take place without 
undue risk to the remediation efforts described in paragraph (b)(1) of 
this section. The COTP will consult with EPA in making this 
determination when necessary and practicable.

    Dated: October 11, 2010.
G.T. Blore,
Rear Admiral, U.S. Coast Guard Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2010-30742 Filed 12-7-10; 8:45 am]
BILLING CODE 9110-04-P


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