[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
[email protected]. 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]
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