[Federal Register Volume 73, Number 162 (Wednesday, August 20, 2008)]
[Proposed Rules]
[Pages 49134-49136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19211]



[[Page 49134]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0747]
RIN 1625-AA11


Regulated Navigation Area; Thea Foss and Wheeler-Osgood 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 the Thea Foss and Wheeler-Osgood 
Waterways, 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 Thea Foss and Wheeler-
Osgood Waterways as part of the remediation process of the 
Environmental Protection Agency's (EPA) Commencement Bay Nearshore/
Tideflats superfund cleanup site. This regulated navigation area would 
prohibit activities that would disturb the seabed, such as anchoring, 
dragging, trawling, spudding, 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 November 18, 2008.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2008-0747 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call ENS Heidi Bevis, U.S. Coast Guard Sector Seattle, Waterways 
Management Division, at 206-217-6147. If you have questions on viewing 
or submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation (DOT) to use the Docket Management 
Facility. Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0747), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and a mailing address, 
an e-mail address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing.
    If you submit them by mail and would like to know that they reached 
the Facility, 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.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov at 
any time. Enter the docket number for this rulemaking (USCG-2008-0747) 
in the Search box, and click ``Go >>.'' You may also visit either the 
Docket Management Facility in Room W12-140 on the ground floor of the 
DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays; or the Waterways Management Division, U.S. Coast Guard Sector 
Seattle, 1519 Alaskan Way South, Seattle, WA 98134, between 8 a.m. and 
3 p.m., Monday through Friday, except Federal holidays.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review the Department of 
Transportation's Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility 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 Thea Foss and Wheeler-Osgood Waterways are part of the 
Commencement Bay Nearshore/Tideflats Superfund Cleanup Site. The Thea 
Foss Waterway is the southernmost of the waterways in Commencement Bay, 
and the Wheeler-Osgood Waterway is a smaller waterway connected to the 
eastern shoreline of the Thea Foss Waterway at approximately its 
midpoint. The Thea Foss and Wheeler-Osgood Waterways cleanup 
encompassed the inner approximately three-fourths of the waterway, with 
active remediation performed primarily south of the 11th Street Bridge. 
This site is bounded by numerous publicly and privately owned 
properties. The City of Tacoma is leading the cleanup and monitoring 
effort in approximately 80% of the Thea Foss and Wheeler-Osgood 
Waterways in conjunction with the United States Environmental 
Protection Agency. A group of private utilities performed the cleanup 
in the remainder of the waterway.
    Remediation activities performed in the Thea Foss and Wheeler-
Osgood Waterways included a combination of dredging, placement of 
enhanced natural recovery material (i.e., approximately 6 inches of 
clean sand), placement of a thick-layer cap, and natural recovery. 
These thick-layer caps consist of approximately three feet of sand and 
gravel and/or riprap and were

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placed in various locations within the waterway to contain contaminated 
sediments. These caps were designed to withstand activities common to a 
working waterfront. The thick-layer caps cover approximately 30 acres 
of sediment in the waterway.

Discussion of Proposed Rule

    This will be a permanent regulation restricting activities such as 
anchoring, dragging, trawling, spudding, or other activities that 
involve disrupting the integrity of the caps. Activities common in the 
proposed regulated areas include recreational boating, tugboat 
movement, and shipyard 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 caps 
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. The proposed rule is not 
``a significant regulatory action'' because the regulated areas 
established by the rule would encompass a small area that should not 
impact commercial or recreational traffic and prohibited activities are 
not routine for the designated areas.

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 U.S. 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.
    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 (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 business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact ENS Hiedi Bevis, U.S. Coast 
Guard Sector Seattle, Waterways Management Division, at 206-217-6147. 
The U.S. Coast Guard will not retaliate against small entities that 
question or complain about this rule or any policy or action of the 
U.S. 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

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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 and Department of Homeland Security Management Directive 
5100.1, which guide the U.S. Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination under the Instruction 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, we believe 
that this rule should be categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation. As a proposal to establish a regulated navigation area, 
this rule meets the criteria outlined in paragraph (34)(g).
    A preliminary ``Environmental Analysis Check List'' is available in 
the docket where indicated under ADDRESSES. Comments on this section 
will be considered before we make the final decision on whether this 
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, and Waterways.

    For the reasons discussed 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; 46 U.S.C. Chapter 701, 3306, 3703; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Department 
of Homeland Security Delegation No. 0170.1.

    2. Add Sec.  165.1324 to read as follows:


Sec.  165.1324  Regulated Navigation Area; Thea Foss and Wheeler-Osgood 
Waterway EPA Superfund Cleanup Site, Commencement Bay, Tacoma, WA.

    (a) Regulated Areas. The following areas are regulated navigation 
areas:
    (1) All waters of the Thea Foss and Wheeler-Osgood Waterways 
bounded by a line connecting the following points: Point 1: 
47[deg]15'43.0513'' N, 122[deg]26'22.9718'' W; Point 2: 
47[deg]15'43.0920'' N, 122[deg]26'20.5400'' W; Point 3: 
47[deg]15'42.1625'' N, 122[deg]26'19.0741'' W; Point 4: 
47[deg]15'40.9149'' N, 122[deg]26'18.2348'' W; Point 5: 
47[deg]15'40.5821'' N, 122[deg]26'19.3051'' W; Point 6: 
47[deg]15'38.9184'' N, 122[deg]26'18.1889'' W; Point 7: 
47[deg]15'38.4275'' N, 122[deg]26'19.7759'' W. [Datum: NAD 1983].
    (2) All waters of the Thea Foss and Wheeler-Osgood Waterways 
bounded by a line connecting the following points: Point 1: 
47[deg]15'22.1992'' N, 122[deg]25'57.2126'' W; Point 2: 
47[deg]15'22.1465'' N, 122[deg]25'58.5186'' W; Point 3: 
47[deg]15'20.8927'' N, 122[deg]25'59.1811'' W; Point 4: 
47[deg]15'19.7138'' N, 122[deg]25'59.0136'' W; Point 5: 
47[deg]15'18.6957'' N, 122[deg]25'57.4348'' W; Point 6: 
47[deg]15'18.9079'' N, 122[deg]25'56.5456'' W. [Datum: NAD 1983].
    (3) All waters of the Thea Foss and Wheeler-Osgood Waterways south 
of a line bounded by connecting the following points: Point 1: 
47[deg]15'13.9421'' N, 122[deg]26'05.5628'' W; Point 2: 
47[deg]15'15.0083'' N, 122[deg]25'55.1405'' W. [Datum: NAD 1983].
    (b) Regulations. All vessels and persons are prohibited from 
activities that would disturb the seabed, such as anchoring, dragging, 
trawling, spudding, or other activities that involve disrupting the 
integrity of the cap in the designated regulated navigation area. 
Vessels may otherwise transit or navigate within this area without 
reservation.
    (c) Waiver. The Captain of the Port (COTP) Puget Sound, upon advice 
from the U.S. 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 the COTP Puget 
Sound determines 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 Commander 
(dpw), 13th Coast Guard District, 915 2nd Avenue, Room 3510, Seattle, 
WA 98174-1067 to facilitate review by USEPA, U.S. Coast Guard, and the 
Washington State Department of Natural Resources. USEPA managed 
remedial design, remedial action, habitat mitigation, or monitoring 
activities associated with the Thea Foss and Wheeler-Osgood Waterway 
Superfund Site are excluded from the waiver requirement. USEPA is 
required, however, to alert the U.S. Coast Guard in advance concerning 
any of the above-mentioned activities that may, or will, take place in 
the Regulated Area.

    Dated: July 28, 2008.
John P. Currier,
Rear Admiral, U.S. Coast Guard Commander, Thirteenth Coast Guard 
District.
 [FR Doc. E8-19211 Filed 8-19-08; 8:45 am]
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