[Federal Register Volume 71, Number 48 (Monday, March 13, 2006)]
[Proposed Rules]
[Pages 12654-12656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-3534]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-06-001]
RIN 1625-AA11


Regulated Navigation Area; Middle Waterway EPA Superfund Cleanup 
Site, Commencement Bay, Tacoma, WA

AGENCY: Coast Guard, DHS.

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 certain areas of the Middle 
Waterway as part of the remediation process at the Commencement Bay, 
Nearshore/Tideflats Environmental Protection Agency (EPA) superfund 
cleanup site. This regulated navigation area would prohibit activities 
that would disturb the seabed, such as anchoring, dragging, trawling, 
or other activities that involve disrupting the integrity of the cap. 
It would not affect transit or navigation of the area.

DATES: Comments and related material must reach the Coast Guard on or 
before April 12, 2006.

ADDRESSES: You may mail comments and related material to Sector 
Commander, Sector Seattle, 1519 Alaskan Way South, Seattle, Washington 
98134. Sector Seattle maintains the public docket [CGD13-06-001] for 
this rulemaking. Comments and material received from the public, as 
well as documents indicated in this preamble as being available in the 
docket, will become part of this docket and will be available for 
inspection or copying at Sector Seattle between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LTJG Jes Hagen, c/o Captain of the 
Port Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 217-
6232.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD13-06-
001), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Sector Seattle at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Background and Purpose

    The Middle Waterway is part of the Commencement Bay Nearshore/
Tideflats Superfund Cleanup Site and is located between the Thea Foss 
Waterway and the St. Paul Waterway in Commencement Bay, Washington. The 
site includes property owned by Foss Maritime Company, Simpson Timber 
Company, and the Washington State Department of Natural Resources 
(DNR), as well as property leased by Marine Industries Northwest, Inc. 
(MINI).
    Part of the remediation process for the site consists of covering 
the contaminated sediments with a thick-layer cap. The thick-layer caps 
consist of approximately three feet of sand, gravel, and light-loose 
riprap and were placed in various locations within the waterway to 
contain contaminated sediments. The thick-layer cap areas cover 
approximately two acres of sediment in the waterway.

Discussion of Proposed Rule

    This is to be a permanent regulation restricting activities such as 
anchoring, dragging, trawling, or other activities that involve 
disrupting the integrity of the cap. Activities common in the proposed 
regulated areas include tugboat and log-rafting activities, tugboat 
moorage, removal and launching of boats for repair and other boat 
repair and maintenance activities. The thick-layer cap areas were 
designed to be compatible with the activities described above that are 
associated with a working waterfront. The material used for the cap was 
chosen to be able to contain underlying sediments without altering the 
main activities of the working waterway.

Regulatory Evaluation

    This proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. This expectation is based on the 
fact that the regulated areas established by the rule would encompass a 
small area that should not impact commercial or recreational traffic.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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

[[Page 12655]]

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.
    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 proposed 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

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 would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.

    2. Add Sec.  165.1322 to read as follows:


Sec.  165.1322  Middle Waterway, Commencement Bay, Tacoma, WA.

    (a) Regulated Areas. The following areas are regulated navigation 
areas:
    (1) All waters of the Middle Waterway bounded by a line connecting 
the following points:
    Point 1: 47[deg]15'49.337'' N, 122[deg]25'55.056'' W;
    Point 2: 47[deg]15'43.600'' N, 122[deg]25'51.453'' W;
    Point 3: 47[deg]15'43.296'' N, 122[deg]25'51.948'' W;
    Point 4: 47[deg]15'49.159'' N, 122[deg]25'55.630'' W.
    [Datum: NAD 1983].
    (2) All waters of the Middle Waterway bounded by a line connecting 
the following points:
    Point 1: 47[deg]15'47.774'' N, 122[deg]25'58.517'' W;
    Point 2: 47[deg]15'45.138'' N, 122[deg]25'56.894'' W;
    Point 3: 47[deg]15'45.113'' N, 122[deg]25'57.863'' W;
    Point 4: 47[deg]15'47.430'' N, 122[deg]25'59.644'' W.
    [Datum: NAD 1983].
    (3) All waters of the Middle Waterway bounded by a line connecting 
the following points:

[[Page 12656]]

    Point 1: 47[deg]15'43.548'' N, 122[deg]25'54.498'' W;
    Point 2: 47[deg]15'42.288'' N, 122[deg]25'53.354'' W;
    Point 3: 47[deg]15'43.245'' N, 122[deg]25'55.476'' W;
    Point 4: 47[deg]15'42.040'' N, 122[deg]25'54.653'' W.
    [Datum: NAD 1983].
    (4) All waters of the Middle Waterway bounded by a line connecting 
the following points:
    Point 1: 47[deg]15'42.288'' N, 122[deg]25'55.130'' W;
    Point 2: 47[deg]15'39.162'' N, 122[deg]25'53.835'' W;
    Point 3: 47[deg]15'39.035'' N, 122[deg]25'54.458'' W;
    Point 4: 47[deg]15'41.738'' N, 122[deg]25'55.599'' W;
    Point 5: 47[deg]15'41.259'' N, 122[deg]25'57.162'' W;
    Point 6: 47[deg]15'41.559'' N, 122[deg]25'57.362'' W.
    [Datum: NAD 1983].
    (5) All waters of the Middle Waterway bounded by a line connecting 
the following points:
    Point 1: 47[deg]15'32.879'' N, 122[deg]25'49.223'' W;
    Point 2: 47[deg]15'28.149'' N, 122[deg]25'46.088'' W;
    Point 3: 47[deg]15'28.067'' N, 122[deg]25'46.351'' W;
    Point 4: 47[deg]15'32.129'' N, 122[deg]25'49.155'' W.
    [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 Middle 
Waterway 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: February 28, 2006.
Richard R. Houck,
Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.
[FR Doc. E6-3534 Filed 3-10-06; 8:45 am]
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