[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Proposed Rules]
[Pages 30753-30755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12978]


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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: Supplemental notice of proposed rulemaking; request for 
comments.

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SUMMARY: The Coast Guard is revising its proposed rule that would 
establish a permanent regulated navigation area (RNA) on portions of 
the Thea Foss and Wheeler-Osgood Waterways in Commencement Bay, Tacoma, 
Washington. The RNA would 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. To more effectively protect those efforts, the 
Coast Guard is revising the proposed rule by slightly expanding the 
boundaries of the proposed RNA.

DATES: Comments and related material must be received by the Coast 
Guard on or before August 2, 2010. Requests for public meetings must be 
received by the Coast Guard on or before July 2, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-0747 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://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 proposed 
rule, call ENS Ashley Wanzer, Waterways Management, Sector Seattle, 
Coast Guard; telephone 206-217-6175, e-mail <a href="/cdn-cgi/l/email-protection#2675434552495475434752524a4371716b6653554541084b4f4a"><span class="__cf_email__" data-cfemail="491a2c2a3d263b1a2c283d3d252c1e1e04093c3a2a2e67242025">[email protected]</span></a>. 
If you have questions on viewing or submitting material to the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

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 http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0747), 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 (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. 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 http://www.regulations.gov, 
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-2008-0747'' 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 comments 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 
the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go tohttp://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2008-0747'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit 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, 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.

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).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before July 2, 2010 using one of the four methods 
specified under ADDRESSES. Please 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.

Regulatory Information

    The Coast Guard published a notice of proposed rulemaking (NPRM) 
entitled ``Regulated Navigation Area; Thea Foss and Wheeler-Osgood 
Waterways EPA

[[Page 30754]]

Superfund Cleanup Site, Commencement Bay, Tacoma, WA'' in the Federal 
Register (73 FR 162, Aug. 20, 2008), docket number USCG-2008-0747. We 
received one comment on the NPRM.

Background and Purpose

    The purpose of the proposed 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.

Discussion of Comments and Change

    During the comment period for the NPRM, the Coast Guard received 
one comment from the City of Tacoma, which requested to be included in 
any consultation over the grant of a waiver under the proposed RNA. We 
have revised the proposed waiver provisions in this supplemental NPRM 
(SNPRM) to eliminate details of the waiver decision process that are 
inappropriate for regulatory text and subject to intergovernmental or 
other agreements. At the same time, we restate our commitment to avoid 
granting any waiver that could unduly jeopardize the superfund site 
remediation efforts that underlie the whole concept of the proposed 
RNA, and we would consult with the City of Tacoma and stakeholders as 
needed and appropriate to safeguard those efforts.

Discussion of Proposed Rule

    The proposed 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. In 
this SNPRM, we have slightly expanded the boundaries initially proposed 
for the RNA, to include buffer zones around EPA's sediment caps. We 
have also simplified the proposed waiver provisions, while restating 
our intention that any waivers be consistent with the EPA's remediation 
efforts in the area.

Regulatory Analyses

    We developed this proposed 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 proposed 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 expectation is based 
on the fact that the RNA established by the rule would encompass a 
small area that should 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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This rule would 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 when this rule is in effect. 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.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person listed in the (FOR 
FURTHER INFORMATION CONTACT) section. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call 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 proposed 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 or more in any 
one year. Though this proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would not effect 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

[[Page 30755]]

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES.
    This proposed rule involves no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, we believe that this rule should be 
categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Instruction, from further environmental documentation. As a proposal to 
establish a regulated navigation area, this rule meets the criteria 
outlined in paragraph (34)(g).
    Comments on this section will be considered before we make the 
final decision on whether this rule should be categorically excluded 
from further environmental review.

List of Subjects in 33 CFR Part 165

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

    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

    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.

    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].

    (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: April 30, 2010.
G.T. Blore,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2010-12978 Filed 6-1-10; 8:45 am]
BILLING CODE 9110-04-P


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