[Federal Register Volume 79, Number 203 (Tuesday, October 21, 2014)]
[Rules and Regulations]
[Pages 62827-62829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25003]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0293]
RIN 1625-AA11


Regulated Navigation Area; Slip 4 Early Action Area Superfund 
Site, Lower Duwamish Waterway, Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
(RNA) on a portion of the Lower Duwamish Waterway in Seattle, 
Washington. The RNA will protect the riverbed in the U.S. Environmental 
Protection Agency's (EPA) Slip 4 Early Action Area (EAA). This RNA 
would prohibit activities that could disrupt the integrity of the 
engineered sediment and slope caps that have been placed within the 
Slip 4 EAA. These activities include vessel grounding, anchoring, 
dragging, trawling, spudding or other such activities that would 
disturb the riverbed. It will not affect transit or navigation of this 
area.

DATES: This rule is effective November 20, 2014.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2013-0293]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LTJG Johnny Zeng, Coast Guard Sector Puget Sound, 
Waterways Management Division, U.S. Coast Guard; telephone (206) 217-
6175, email <a href="/cdn-cgi/l/email-protection#2c7f494f58435e7c594b49587f435942487b7b616c595f4f4b02414540"><span class="__cf_email__" data-cfemail="0b586e687f64795b7e6c6e7f58647e656f5c5c464b7e78686c25666267">[email protected]</span></a>. If you have questions on 
viewing or submitting material to the docket, call Barbara Hairston, 
Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard received notice from the U.S. EPA on February 28, 
2013, requesting the establishment of a RNA for Slip 4 EAA located in 
the Lower Duwamish Waterway Superfund Site, Seattle, Washington. This 
request was received as a result of the need to protect the riverbed in 
the Lower Duwamish Waterway (LDW) from activities that could disrupt 
the integrity of the engineered sediment and slope caps that have been 
placed within the Slip 4 EAA to isolate underlying contaminated 
sediments.
    The LDW was added to the U.S. EPA's National Priorities List 
(Superfund) in September 2001 because of hazardous substance 
contamination in sediments. Slip 4 was subsequently identified by the 
EPA and the Washington Department of Ecology as EAA within the LDW, 
based primarily on elevated concentrations of polychlorinated biphenyls 
(PCBs). Slip 4 EAA cleanup activities were conducted pursuant to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), under U.S. EPA's non-time-critical removal action (NTCRA) 
authority. In May 2006, U.S. EPA issued an Action Memorandum containing 
its removal action decision for the Slip 4 EAA. The Slip 4 EAA removal 
action was conducted by the City of Seattle (City) under an 
administrative settlement agreement and order on consent (ASAOC), 
CERCLA Docket No. 10-2006-0364.
    The selected removal action required dredging, excavation, and 
offsite disposal of 17,202 tons of contaminated sediment, shoreline, 
soil, and creosote-treated timber piles and other debris, and placement 
of engineered sediment and slope caps throughout the EAA (approximately 
3.43 acres) to isolate residual sediment contamination within the EAA. 
In addition, the removal action included demolition and removal/
recycling of a portion of an aging concrete pier and supporting piling 
on the northwest bank of the slip, and creation of two intertidal beach 
areas and other shallow-water areas to improve habitat conditions in 
the slip. Construction activities were initiated in October 2011 and 
completed in February 2012. A Removal Action Completion Report 
documenting the cleanup activities was completed and approved by the 
U.S. EPA in July 2012.
    On April 22, 2014, an NPRM, Navigation Areas: Slip 4 EAA Superfund 
Site, Seattle, WA, was published. The Coast Guard received no comments 
on the NPRM and no requests for public meeting. No changes were made to 
the rule published in the NPRM.

B. Basis and Purpose

    Coast Guard District Commanders are granted authority under 33 CFR 
165.11 to regulate vessel traffic in areas with hazardous conditions. 
This rule is necessary to prevent disturbance of the Slip 4 EAA 
sediment and slope caps. Disruption of the caps may result in a 
hazardous condition and harm to the marine environment. As such, this 
RNA is necessary to protect the caps and will do so by prohibiting 
maritime activities that could disturb or damage them. This RNA is 
similar to RNAs which protect other caps in the area. Enforcement of 
this RNA will be managed by Coast Guard Sector Puget Sound assets 
including Vessel Traffic Service Puget Sound through radar and closed 
circuit television sensors.

C. Discussion of Comments, Changes and the Final Rule

    The Coast Guard is establishing a permanent RNA in the LDW to 
protect the sediment and slope caps in the Slip 4 EAA, Superfund Site 
(EPA ID No. WA0002329803). It will do so by restricting anchoring, 
dragging, trawling, spudding or other activities that could disrupt the 
integrity of the caps and the underlying contaminated sediments located 
in the RNA. No comments were received by the Coast Guard on this rule.

D. Regulatory Analyses

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

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. 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 the prohibited

[[Page 62828]]

activities are not routine for the designated areas.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 received no comments from the Small Business 
Administration on this rule. 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 will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to anchor, 
drag, dredge, trawl, spud, or disturb the riverbed in any fashion when 
this rule is in effect. The RNA will not have a significant economic 
impact on small entities due to its minimal restrictive area and the 
opportunity for a waiver to be granted for any legitimate use of the 
riverbed.

3. 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 rule. If the rule affects 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, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 would not result 
in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

8. Taking of Private Property

    This rule would 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.

9. 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.

10. Protection of Children From Environmental Health Risks

    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 will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

11. Indian Tribal Governments

    This rule was determined to have potential tribal implications 
under Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, because it regulates navigation on waters subject 
to treaty fishing rights held by Indian Tribal Governments. The Coast 
Guard and EPA consulted with the Muckleshoot and Suquamish Tribes. To 
accommodate treaty fishing activity in usual and accustomed places, 
which fall within the area covered by the sediment cap, the Coast Guard 
included an exception for treaty fishing activity by Indian Tribes 
holding such fishing rights.

12. Energy Effects

    This rule is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 made a 
preliminary determination that 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 involves a regulated 
navigation area which prevents activities which would disturb the 
riverbed within the areas outlined in this regulation. This rule is 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. A preliminary environmental 
analysis checklist supporting this determination and a Categorical 
Exclusion Determination are available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this proposed 
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and 
recordkeeping

[[Page 62829]]

requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
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. 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, and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.1338 to read as follows:


Sec.  165.1338  Regulated Navigation Area; Slip 4 Early Action Area 
Superfund Site, Lower Duwamish Waterway, Seattle, WA.

    (a) Regulated Areas. The following areas are regulated navigation 
areas: All waters within the northern portion of Slip 4 bounded by the 
shoreline and the southern boundary of the Early Action Area defined as 
the line beginning at a point on the shore at 47[deg]32'08.47'' N, 
122[deg]19'12.00'' W; thence southeast to a point on the shoreline at 
47[deg]32'07.02'' N, 122[deg]19'09.23'' W (Datum: NAD 1983/91).
    (b) Regulations. (1) All vessels and persons are prohibited from 
grounding, anchoring, dragging, trawling, spudding, or otherwise 
contacting the riverbed within the designated regulated navigation 
area. Vessels may otherwise transit or navigate within this area in 
accordance with the Navigation Rules.
    (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 superfund sites, provided that the 
Captain of the Port, Puget Sound (COTP), is given advance notice of 
those activities by the Environmental Protection Agency.
    (3) The prohibition described in paragraph (b)(1) of this section 
does not apply to vessels or person engaged in fishing activities 
pursuant to fishing rights held by treaty with the United States.
    (c) Waivers. 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 2, 2014.
R.T. Gromlich,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2014-25003 Filed 10-20-14; 8:45 am]
BILLING CODE 9110-04-P


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