[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 [email protected].
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]
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