[Federal Register Volume 67, Number 231 (Monday, December 2, 2002)]
[Proposed Rules]
[Pages 71513-71515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30435]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD13-02-016]
RIN 2115-AE84


Regulated Navigation Area; Olympic View EPA Superfund Cleanup 
Site, Commencement Bay, Tacoma, WA

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to create a permanent regulated 
navigation area on a portion of Commencement Bay, Tacoma, Washington. 
This regulated navigation area would be used to preserve the integrity 
of a clean sediment cap placed over the seabed as part of the 
remediation process at the Olympic View Environmental Protection Agency 
(EPA) superfund cleanup site. This regulated navigation area would 
prohibit activities that would disturb the seabed, such as anchoring, 
dredging, spudding, laying cable or other disturbance of the bottom. It 
would not affect transit or navigation of the area.

DATES: Comments must reach the Coast Guard on or before January 31, 
2003.

ADDRESSES: You may mail comments to U.S. Coast Guard Marine Safety 
Office Puget Sound, 1519 Alaskan Way South, Building 1, Seattle, 
Washington 98134, or deliver them to room 523 at the same address 
between 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays. The telephone number is (206) 217-6232. Comments and 
documents as indicated in this preamble will become part of this docket 
and will be available for inspection or copying at the above address 
and times.

FOR FURTHER INFORMATION CONTACT: MST2 C.R. Petersen, c/o Captain of the 
Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 98134, at 
(206) 217-6232.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names, addresses, 
identify this rulemaking (CGD13-02-016) and the specific section of 
this proposal to which each comment applies, and give the reason for 
each comment. Please submit two copies of all comments and attachments 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. Persons wanting acknowledgement of 
receipt of comments should enclose stamped, self-addressed postcards or 
envelopes.
    The Coast Guard will consider all comments received during the 
comment period. It may change this proposal in view of the comments.
    The Coast Guard plans no public hearing. Persons may request a 
public hearing by writing to the Marine Safety Council at the address 
under ADDRESSES. The request should include the reasons why a hearing 
would be beneficial. If it is determined that the

[[Page 71514]]

opportunity for oral presentations will aid this rulemaking, the Coast 
Guard will hold a public hearing at a time and place to be announced by 
a later notice in the Federal Register.

Background and Purpose

    The Olympic View Superfund Site is located between the eastern 
boundary of the Thea Foss Waterway and the western boundary of the 
Middle Waterway of Commencement Bay, Washington. The site includes 
property owned and or leased by the now closed Puget Sound Plywood 
Company, contaminated sediments in Commencement Bay, and other upland 
sources of contamination. The site is approximately 12.4 acres in size 
and includes 10.6 acres of intertidal and shallow subtidal marine 
aquatic land. An area of 2.2 acres of marine sediments is contaminated 
within the site.
    Part of the remediation process for this site consists of covering 
the contaminated sediments with a layer of clean medium to course 
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.

Discussion of Proposed Rules

    This is to be a permanent regulation restricting activities such as 
anchoring, salvage or dredging, which would disturb the sediment cap 
covering the contaminated seabed. The regulation would not affect 
normal transit or navigation of the area. The Olympic View Restoration 
Area is located offshore of the peninsula between the Thea Foss and 
Middle Waterways in Commencement Bay, Tacoma, Washington. The sediment 
cap includes approximately 480 feet of shoreline extending 
approximately 420 feet into the bay. This area is relatively 
unprotected and is rarely utilized as an anchorage.

Regulatory Evaluation

    This proposed 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). We expect the economic impact of this proposed rule 
to be so minimal that a full Regulatory Evaluation under paragraph 
10(e) of the regulatory policies and procedures of DOT is unnecessary. 
This expectation is based on the fact that the regulated area 
established by the rule would encompass a small area that should not 
impact commercial or recreational traffic. The Olympic View Resource 
Area does not appear to have any viable industrial or commercial use. 
Moreover, and any land or water use on the site that would be at odds 
with the regulated navigation area (RNA) would likely be restricted 
through the site's designation by the City of Tacoma as a Natural 
Resource Damage Assessment (NRDA) settlement site, pursuant to a 
Consent Decree between the City of Tacoma and the Natural Resource 
Trustees. Furthermore, on May 24, 2000, the State Commissioner of 
Public Lands established the project area as part of an environmental 
reserve under RCW 79.68.060. This designation removes the site from 
potential development or commercial leasing. For the above reasons, the 
Coast Guard does not anticipate any significant economic impact.

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 of less than 50,000. 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 zone would not have a significant economic 
impact due to its small area. Because the impacts of this proposal are 
expected to be so minimal, the Coast Guard certifies under 605(b) of 
the Regulatory Flexibility Act (5 U.S.C. 601-612) that this final rule 
would not have a significant economic impact on a substantial number of 
small entities.
    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 (Public Law 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.

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

    We have analyzed this proposed 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 costs. This proposed rule would not impose an unfunded mandate.

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 does not 
concern an environmental risk to health or risk to

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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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We considered the environmental impact of this proposed rule and 
concluded that, under figure 2-1, paragraph (34)(g) of Commandant 
Instruction M16475.lD, this proposed rule is categorically excluded 
from further environmental documentation. A Categorical Exclusion 
Determination is available in the docket for inspection and copying 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

Proposed Regulation

    For the reasons set out 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. 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. Add Sec.  165.1311 to read as follows:


Sec.  165.1311  Olympic View Resource Area, Tacoma, WA.

    (a) Regulated area. The following area is a regulated navigation 
area: that portion of Commencement Bay bounded by a line beginning at: 
47[deg]15'40.19753'' N, 122[deg]26'09.27617'' W; thence to 
47[deg]15'42.21070'' N, 122[deg]26'10.65290'' W; thence to 
47[deg]15'41.84696'' N, 122[deg] 26'11.80062'' W; thence to 
47[deg]15'45.57725'' N, 122[deg]26'14.35173'' W; thence to 
47[deg]15'53.06020'' N, 122[deg]26'06.61366'' W; thence to 
47[deg]15'46.74493'' N, 122[deg]26'09.27617'' W; thence returning along 
the shoreline to the 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 regulated navigation 
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 Olympic View 
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: November 5, 2002.
E.M. Brown,
Rear Admiral, U.S. Coast Guard, 13th District Commander.
[FR Doc. 02-30435 Filed 11-29-02; 8:45 am]
BILLING CODE 4910-13-P