[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81467-81469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32543]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2010-1098]
RIN 1625-AA00
Safety Zone; Potential Unexploded Ordnance, Pier 91, Seattle, WA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone
encompassing all waters within 100 yards of Pier 90/91 between terminal
89 and the Elliott Bay Marina Breakwater on Elliott Bay in Seattle,
Washington. The safety zone is necessary to help ensure the safety of
the maritime public due to discarded military munitions discovered in
close proximity to Pier 91 and will do so by prohibiting any person or
vessel from entering or remaining in the safety zone unless authorized
by the Captain of the Port or his designated representative.
DATES: This rule is effective in the CFR on December 28, 2010 through
April 15, 2011. This rule is effective with actual notice for purposes
of enforcement starting at 12:01 a.m. on December 14, 2010. This rule
will remain in effect through 11:59 p.m. on April 15, 2011, unless
canceled sooner by the Captain of the Port.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2010-1098 and are available online
by going to http://www.regulations.gov, inserting USCG-2010-1098 in the
``Keyword'' box, and then clicking ``Search.'' They are 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
temporary rule, call or e-mail LTJG Ashley Wanzer, Waterways Management
Division, Coast Guard Sector Puget Sound; 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
The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because to do so would be contrary to public
interest since immediate action is necessary to ensure the safety of
the maritime public during the removal of these military munitions.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register because to do otherwise would be
contrary to public interest since immediate action is necessary to
ensure the safety of the maritime public during the removal of these
military munitions.
Basis and Purpose
From April to October 2010, the Port of Seattle discovered
discarded military munitions while conducting required routine security
dives around pier 90/91 prior to cruise ship arrivals. On eight
occasions, divers discovered munitions that date back decades to when
the facility was used by the military. Each time, after the items were
removed, the Navy and/or Coast Guard determined there was no imminent
threat for tenants, cruise terminal operations, and all other
commercial vessel operations who utilize the facility. Port police
continued to perform routine dives throughout the summer during cruise
season.
The U.S. Army Corps of Engineers has designated Pier 90 and 91 as a
Formerly Used Defense Site (FUDS) and has assumed responsibility for
removal of discarded military munitions from this area.
Discussion of Rule
The safety zone created by this rule encompasses all waters within
100 yards of Pier 90/91 between terminal 89 and the Elliott Bay Marina
Breakwater on Elliott Bay in Seattle, Washington. The safety zone can
also be described as all waters shoreward of a line extending from
Elliot Bay Marina Breakwater at 47-37.646N, 122-23.227W then
southeasterly to 47-37.537N, 122-23.015W then east to 47-37.537N, 122-
22.767W then northeasterly to 47-37.611N, 122-22.678W. Entry into the
safety zone by any person or vessel is prohibited unless authorized by
the Captain of the Port or designated representative.
The Army Corps of Engineers is authorized under the authority of
the FUDS program to conduct site investigation and time-critical
removal action of the submerged munitions at Piers 90 and 91.
Therefore, authorized survey operations and contracted divers will be
allowed to perform duties associated with the planned ammunition
removal during the enforcement of this rule.
The safety zone will be enforced by U.S. Coast Guard personnel. The
Captain of the Port may be assisted by other Federal, State, or local
agencies as needed.
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. The Coast Guard has made this finding
based on the fact that the safety zone created by this rule is limited
in time and duration. Also, maritime traffic can transit around the
zone.
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 will affect the following entities, some of which
may be small entities: the owners or operators of vessels intending to
transit the safety zone during periods of enforcement.
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The rule will not have a significant economic impact on a substantial
number of small entities, however, because the safety zone created by
the rule is limited in time and duration, and maritime traffic can
transit around the zone.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can 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 Commandant Instruction from further environmental documentation.
This rule involves the establishment of a safety zone.
Under figure 2-1, paragraph (34)(g), of the Instruction, an
environmental analysis checklist and a categorical exclusion
determination will be made available in the docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Security measures, Waterways.
0
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. 1226, 1231; 46 U.S.C. Chapters 701, 3306,
3707; 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.T13-171 to read as follows:
Sec. 165.T13-171 Safety Zone; Potential Unexploded Ordinance, Pier
91, Seattle, WA
(a) Location. The following area is a safety zone: All waters
shoreward of a line extending from Elliott Bay Marina Breakwater at 47-
37.646N, 122-23.227W then southeasterly to 47-37.537N, 122-23.015W then
east to 47-37.537N, 122-22.767W then
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northeasterly to 47-37.611N, 122-22.678W.
(b) Regulations. In accordance with the general regulations in 33
CFR Part 165, Subpart C, no person may enter or remain in the safety
zone created in this section or bring, cause to be brought, or allow to
remain in the safety zone created in this section any vehicle, vessel,
or object unless authorized by the Captain of the Port or designated
representative. Designated representatives are Coast Guard personnel
authorized by the Captain of the Port to grant persons or vessels
permission to enter or remain in the safety zone created by this
section. See 33 CFR part 165, subpart C, for additional information and
requirements.
(c) Enforcement Period. The safety zone created in this section is
effective from 12:01 a.m. on December 14, 2010 until 11:59 p.m. on
April 15, 2011 unless canceled sooner by the Captain of the Port.
Dated: December 10, 2010.
S.J. Ferguson,
Captain, U. S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 2010-32543 Filed 12-27-10; 8:45 am]
BILLING CODE 9110-04-P