[Federal Register Volume 68, Number 70 (Friday, April 11, 2003)]
[Rules and Regulations]
[Pages 17734-17736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8944]



[[Page 17734]]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-02-016]
RIN 1625-AA00 [Formerly 2115-AA97]


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

AGENCY: Coast Guard, DHS.

ACTION: Final Rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a permanent regulated 
navigation area (RNA) on a portion of Commencement Bay, Tacoma, 
Washington. This RNA will preserve the integrity of a clean sediment 
cap placed over the contaminated seabed as part of the remediation 
process at the Olympic View Resource Area Environmental Protection 
Agency (USEPA) Superfund Site. It is being established at the request 
of the USEPA and the Washington State Department of Natural Resources 
and prohibits activities that would disturb the seabed, such as 
anchoring, dredging, spudding, laying cable, or other disturbances of 
the bottom. This rule will not affect transit or navigation of the 
area.

DATE: This rule is effective May 12, 2003.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD13-02-016 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 between 8 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: MST1 Craig. R. Petersen, c/o Captain 
of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 
98134, at (206) 217-6232.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On December 2, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled Regulated Navigation Area; Olympic View EPA Superfund 
Cleanup Site, Commencement Bay, Tacoma, WA, in the Federal Register (67 
FR 71513). We received two phone calls commenting on the proposal. No 
public hearing was requested, and none held.

Background and Purpose

    The Olympic View Resource Area 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 coarse-
grained sand approximately one-meter (3-feet) thick or greater. 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 Regulated Navigation Area (RNA) is a permanent regulation 
restricting activities such as anchoring, dredging, spudding, laying 
cable or other activities, which would disturb the sediment cap 
covering the contaminated seabed. The rule does not affect normal 
transit or navigation of the area. The Olympic View Resource 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.

Discussion of Comments and Changes

    The Coast Guard received two phone calls 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: Two phone comments were received stating that the 
longitude on the last set of coordinates described in the NPRM as 
47[deg]15'46.74493'' North, 122[deg]26'09.27617'' West appeared 
incorrect and did not make sense.
    Response: These comments were investigated and found to be correct. 
The correct longitude on the last set of coordinates should be 
122[deg]26'02.50574'' West. Accordingly, the last set of coordinates 
listed in paragraph (a) of the final rule has been corrected and reads 
47[deg]15'46.74493'' North, 122[deg]26'02.50574'' West. The size of the 
RNA did not appreciably change due to this correction.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    This finding 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, any land or water use on the site that would be at odds with 
the 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 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. 
This rule will 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 will not have a significant economic impact 
due to its small area. Because the impacts of this rule are expected to 
be so minimal, the Coast Guard certifies under 605(b) of the

[[Page 17735]]

Regulatory Flexibility Act (5 U.S.C. 601-612) that this final rule will 
not have a significant economic impact on a substantial number of small 
entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process. No 
assistance was requested by small entities.
    Small business 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).

Collection of Information

    This 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 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 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 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 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.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. This particular regulated navigation area 
is established 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 RNA. A final ``Environmental Analysis 
Check List'' and a final ``Categorical Exclusion Determination'' are 
available in the docket where indicated under ADDRESSES.
    The USEPA has determined that there will be no significant 
environmental impact arising from the creation of this RNA designed to 
protect the sediment cap. The actual placement of the cap at the 
Olympic View Resource Area site was determined by the USEPA to provide 
an environmental benefit to the area by allowing organisms to colonize 
the clean sediments of the cap (``Action Memorandum for a Non-time-
critical Removal Action at the Olympic View Resource Area within the 
Commencement Bay Nearshore/Tideflats Superfund Site, Tacoma, Pierce 
County, Washington''--July 16, 2001). The USEPA's authority to place 
the cap is expressed in this publicly available document, 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), Reporting and 
recordkeeping 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation 
No. 0170.

0
2. Section 165.1311 is added to read as follows:


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

    (a) Regulated area. A regulated navigation area is established on 
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

[[Page 17736]]

47[deg]15'46.74493'' N, 122[deg]26'02.50574'' 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 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 United States Environmental Protection Agency (USEPA) 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 shall be submitted in triplicate, to facilitate 
review by USEPA, Coast Guard, and Washington State Agencies. USEPA 
managed remedial design, remedial action, habitat mitigation, or 
monitoring activities associated with the Olympic View Resource Area 
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: March 27, 2003.
Erroll Brown,
Rear Admiral, U.S. Coast Guard, 13th District Commander.
[FR Doc. 03-8944 Filed 4-10-03; 8:45 am]
BILLING CODE 4910-15-P