[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72559-72561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33581]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

RIN 2115-AE84
[CGD13-98-004]


Regulated Navigation Area, Eagle Harbor, Bainbridge Island, WA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent regulated 
navigation area on a portion of Eagle Harbor, Bainbridge Island, 
Washington. This regulated navigation area is required to preserve the 
integrity of a clean sediment cap placed over contaminated seabed as 
part of the remediation process at a U.S. Environmental Protection 
Agency (USEPA) Superfund site. It is being established at the request 
of the USEPA and the Washington State Department of Natural Resources. 
It prohibits activities that would disturb the seabed, such as 
anchoring, dredging, or laying cable, with the exception of EPA managed 
remedial design, remedial action, habitat mitigation, or monitoring 
activities associated with the Wyckoff/Eagle Harbor Superfund Site. It 
would not affect transit or navigation of the area.

DATES: Effective: January 27, 2000.

ADDRESSES: Unless otherwise indicated, comments and material received 
from the public, as well as documents referred to in this preamble, are 
part of docket CGD13-98-004 and are available for inspection or copying 
at U.S. Coast Guard Marine Safety Office Puget Sound, 1519 Alaskan Way 
South, Building 1, Seattle, Washington 98134. Normal office hours are 
between 7 a.m. and 5 p.m., Monday through Friday, except federal 
holidays.

FOR FURTHER INFORMATION CONTACT: LT Paul M. Stocklin, Jr., c/o Captain 
of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 
98134, (206) 217-6232.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On February 23, 1999, we published a notice of proposed rulemaking 
entitled Regulated Navigation Area, Eagle Harbor, Bainbridge Island, 
WA, in the Federal Register (64 FR 8764). We received two letters 
commenting on the proposal. No public hearing was requested, and none 
was held.

[[Page 72560]]

Background and Purpose

    The Wyckoff/Eagle Harbor Superfund site is located on the East Side 
of Bainbridge Island, in Central Puget Sound, Washington. The site 
includes a former 40-acre wood-treating facility, contaminated 
sediments in adjacent Eagle Harbor, and other upland sources of 
contamination to the harbor, including a former shipyard.
    Part of the remediation process for this site consists of covering 
the contaminated sediments in Eagle Harbor with a layer of clean 
medium-to-coarse grained sand approximately one-meter (3-feet) thick. 
This cap is used to isolate contaminants and limit their vertical 
migration and release into the water column. The cap will also limit 
the potential for marine organisms to reach the contaminated sediment.
    This rule establishes a permanent regulated navigation area, which 
prohibits activities such as anchoring, salvage, or dredging which 
would disturb the sediment cap covering the contaminated seabed. The 
regulation does not affect normal transit or navigation of the area. 
The Wyckoff facility is located on the point of land that forms the 
southeastern border of Eagle Harbor. The sediment cap includes 
approximately 2600 feet of shoreline and extends approximately 2800 
feet into the harbor. This area is seldom used as an anchorage site as 
it is in relatively unprotected water near the mouth of the harbor.

Discussion of Comments and Changes

    The Coast Guard received two letters commenting on the notice of 
proposed rulemaking (NPRM). The following paragraphs contain a 
discussion of comments received and an explanation of changes, if any, 
to the proposed regulations.
    Comment: One comment strongly supports the prohibition of dredging 
and laying of cable, but opposes the prohibition of anchoring. The 
comment offers the opinion that the purpose of the ban on anchoring is 
not to preserve the integrity of the clean sediment cap, but rather to 
support wealthy homeowners wishing to rid the harbor of unsightly 
vessels. The comment states a concern the rule will establish precedent 
leading to additional bans on anchoring to conform to the wishes of 
property owners.
    Response: We disagree with this comment. It has been clearly stated 
that the purpose of this rule is to preserve the integrity of a clean 
sediment cap placed over contaminated seabed as part of the remediation 
process at a USEPA Superfund site. The dropping and setting of anchors 
clearly threaten the integrity of the cap. The rule applies only to the 
area defined by the boundaries of the regulated navigation area. This 
area is in relatively unprotected water near the mouth of the harbor 
and seldom used as an anchorage site.
    Comment: The comment states the area has been commercial property 
for over one hundred years and is ideally situated for the building of 
docks, piles to be driven and anchors to be dropped. The comment 
indicates the rule will make the area totally unusable and commercial 
use of the entire harbor would be lost. The comment adds that as the 
area grows, they will need more marine facilities--not less.
    Response: As previously stated, the rule does not affect normal 
transit or navigation of the area. The rule includes a waiver process 
that will permit otherwise prohibited activity if the EPA and the 
Washington State Department of Natural Resources determine the proposed 
activity can be performed in a manner that ensures the integrity of the 
sediment cap. The need for placing and preserving the clean sediment 
cap has been well established by the USEPA and supported by the 
Washington State Department of Natural Resources. The listing of the 
site as a Superfund site and its suitability for future commercial 
development are outside the scope of this rulemaking and will not be 
addressed.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866 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. 
It is not ``significant'' under the regulatory policies and procedures 
of the Department of Transportation (DOT) (44 FR 11040, February 26, 
1979). The Coast Guard expects the economic impact of this proposal to 
be so minimal that a full Regulatory Evaluation under paragraph 10(e) 
of the regulatory policies and procedures of DOT is unnecessary. The 
proposed rule would not affect normal transit or navigation of the area 
and the only property involved is that of the former Wyckoff facility. 
The area is not a designated anchorage ground nor special anchorage 
area and was seldom used as an anchorage site as it is in relatively 
unprotected water immediately adjacent the harbor entrance.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612.), we 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. ``Small entities'' include 
small businesses, not-for-profit organizations that are independently 
owned and operated and are not dominant in their fields, and 
governmental jurisdictions with populations less than 50,000. This rule 
will affect the following entities, some of which may be small 
entities: The owners or operators of vessels intending to engage in one 
of the prohibited activities in the regulated area. This proposed rule 
would not affect transit or navigation of the area. Rather, it would 
prohibit activities that would disturb the seabed, such as anchoring, 
dredging, or laying cable. The area is not a designated anchorage 
ground nor special anchorage area and was seldom used as an anchorage 
site as it is relatively unprotected water immediately adjacent the 
harbor entrance.
    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.

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

    We have analyzed this rule under Executive Order 13132 and have 
determined that this rule does not have implications for federalism 
under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those unfunded mandate costs. This rule will not impose an unfunded 
mandate.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

[[Page 72561]]

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. This rule is not an 
economically significant rule and does not concern an environmental 
risk to health or risk to safety that may disproportionately affect 
children.

Environmental Analysis

    The Coast Guard considered the environmental impact of this rule 
and has concluded that, under figure 2-1, paragraph (34)(g), of 
COMDTINST M16475.1C, this rule is categorically excluded from further 
environmental documentation. A Categorical Exclusion is provided for 
regulations establishing Regulated Navigation Areas. This particular 
regulated navigation area is proposed for the purpose of preserving the 
remediation efforts at a USEPA Superfund Site. The rule itself will not 
cause nor introduce any environmental impacts and will be transparent 
in all regards except for prohibiting activities which could disturb 
the seabed within the established boundaries of the site.
    The USEPA has determined that there will be no significant 
environmental impact arising from the creation of a RNA designed to 
protect the sediment cap. The actual placement of the cap in Eagle 
Harbor was determined by USEPA to provide an environmental benefit to 
the area by allowing organisms to colonize the clean sediments of the 
cap (``The Proposed Plan for Cleanup of Eagle Harbor''--December 16, 
1991). USEPA's authority to place the cap is expressed in a publicly 
available document known as a ``Removal Action Memorandum'' dated June 
15, 1993, and additional information is available at the Marine Safety 
Office at the address under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and 
recordkeeping 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

    1. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1 (g), 
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.

    2. A new Sec. 165.1309 is added to read as follows:


Sec. 165.1309  Eagle Harbor, Bainbridge Island, WA.

    (a) Regulated area. A regulated navigation area is established on 
that portion of Eagle Harbor bounded by a line beginning at: 47 deg. 
36' 56'' N, 122 deg. 30' 36'' W; thence to 47 deg. 37' 11'' N, 122 deg. 
30' 36'' W; thence to 47 deg. 37' 25'' N, 122 deg. 30' 17'' W; thence 
to 47 deg. 37' 24'' N, 122 deg. 30' 02'' W; thence to 47 deg. 37' 16'' 
N, 122 deg. 29' 55'' W; thence to 47 deg. 37' 03'' N, 122 deg. 30' 02'' 
W; thence returning along the shoreline to point of origin. [Datum NAD 
1983].
    (b) Regulations. All vessels and persons are prohibited from 
anchoring, dredging, laying cable, dragging, seining, bottom fishing, 
conducting salvage operations, or any other activity which could 
potentially disturb the seabed in the designated area. Vessels may 
otherwise transit or navigate within this area without reservation.
    (c) Waiver. The Captain of the Port, Puget Sound, upon advice from 
the U.S. EPA Project Manager and the Washington State Department of 
Natural Resources, may, upon written request, authorize a waiver from 
this section if it is determined that the proposed operation supports 
USEPA remedial objectives, or can be performed in a manner that ensures 
the integrity of the sediment cap. A written request must describe the 
intended operation, state the need, and describe the proposed 
precautionary measures. Requests should be submitted in triplicate, to 
facilitate review by U.S. EPA, Coast Guard, and Washington State 
Agencies. USEPA managed remedial design, remedial action, habitat 
mitigation, or monitoring activities associated with the Wyckoff/Eagle 
Harbor Superfund Site are excluded from the waiver requirement. USEPA 
is required, however, to alert the Coast Guard in advance concerning 
any of the above-mentioned activities that may, or will, take place in 
the Regulated Area.

    Dated: December 15, 1999.
Paul M. Blayney,
Rear Admiral, USCG 13th District Commander.
[FR Doc. 99-33581 Filed 12-27-99; 8:45 am]
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