[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81467-81469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32543]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1098]
RIN 1625-AA00


Safety Zone; Potential Unexploded Ordnance, Pier 91, Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone 
encompassing all waters within 100 yards of Pier 90/91 between terminal 
89 and the Elliott Bay Marina Breakwater on Elliott Bay in Seattle, 
Washington. The safety zone is necessary to help ensure the safety of 
the maritime public due to discarded military munitions discovered in 
close proximity to Pier 91 and will do so by prohibiting any person or 
vessel from entering or remaining in the safety zone unless authorized 
by the Captain of the Port or his designated representative.

DATES: This rule is effective in the CFR on December 28, 2010 through 
April 15, 2011. This rule is effective with actual notice for purposes 
of enforcement starting at 12:01 a.m. on December 14, 2010. This rule 
will remain in effect through 11:59 p.m. on April 15, 2011, unless 
canceled sooner by the Captain of the Port.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-1098 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-1098 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail LTJG Ashley Wanzer, Waterways Management 
Division, Coast Guard Sector Puget Sound; telephone 206-217-6175, e-
mail [email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because to do so would be contrary to public 
interest since immediate action is necessary to ensure the safety of 
the maritime public during the removal of these military munitions.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register because to do otherwise would be 
contrary to public interest since immediate action is necessary to 
ensure the safety of the maritime public during the removal of these 
military munitions.

Basis and Purpose

    From April to October 2010, the Port of Seattle discovered 
discarded military munitions while conducting required routine security 
dives around pier 90/91 prior to cruise ship arrivals. On eight 
occasions, divers discovered munitions that date back decades to when 
the facility was used by the military. Each time, after the items were 
removed, the Navy and/or Coast Guard determined there was no imminent 
threat for tenants, cruise terminal operations, and all other 
commercial vessel operations who utilize the facility. Port police 
continued to perform routine dives throughout the summer during cruise 
season.
    The U.S. Army Corps of Engineers has designated Pier 90 and 91 as a 
Formerly Used Defense Site (FUDS) and has assumed responsibility for 
removal of discarded military munitions from this area.

Discussion of Rule

    The safety zone created by this rule encompasses all waters within 
100 yards of Pier 90/91 between terminal 89 and the Elliott Bay Marina 
Breakwater on Elliott Bay in Seattle, Washington. The safety zone can 
also be described as all waters shoreward of a line extending from 
Elliot Bay Marina Breakwater at 47-37.646N, 122-23.227W then 
southeasterly to 47-37.537N, 122-23.015W then east to 47-37.537N, 122-
22.767W then northeasterly to 47-37.611N, 122-22.678W. Entry into the 
safety zone by any person or vessel is prohibited unless authorized by 
the Captain of the Port or designated representative.
    The Army Corps of Engineers is authorized under the authority of 
the FUDS program to conduct site investigation and time-critical 
removal action of the submerged munitions at Piers 90 and 91. 
Therefore, authorized survey operations and contracted divers will be 
allowed to perform duties associated with the planned ammunition 
removal during the enforcement of this rule.
    The safety zone will be enforced by U.S. Coast Guard personnel. The 
Captain of the Port may be assisted by other Federal, State, or local 
agencies as needed.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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. The Coast Guard has made this finding 
based on the fact that the safety zone created by this rule is limited 
in time and duration. Also, maritime traffic can transit around the 
zone.

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.
    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. This rule will affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit the safety zone during periods of enforcement.

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The rule will not have a significant economic impact on a substantial 
number of small entities, however, because the safety zone created by 
the rule is limited in time and duration, and maritime traffic can 
transit around the zone.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    Small businesses 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). 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 rule calls 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 (adjusted for 
inflation) 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 will not cause 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.

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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Commandant Instruction from further environmental documentation. 
This rule involves the establishment of a safety zone.
    Under figure 2-1, paragraph (34)(g), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination will be made available in the docket.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping 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. 1226, 1231; 46 U.S.C. Chapters 701, 3306, 
3707; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1


0
2. Add Sec.  165.T13-171 to read as follows:


Sec.  165.T13-171  Safety Zone; Potential Unexploded Ordinance, Pier 
91, Seattle, WA

    (a) Location. The following area is a safety zone: All waters 
shoreward of a line extending from Elliott Bay Marina Breakwater at 47-
37.646N, 122-23.227W then southeasterly to 47-37.537N, 122-23.015W then 
east to 47-37.537N, 122-22.767W then

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northeasterly to 47-37.611N, 122-22.678W.
    (b) Regulations. In accordance with the general regulations in 33 
CFR Part 165, Subpart C, no person may enter or remain in the safety 
zone created in this section or bring, cause to be brought, or allow to 
remain in the safety zone created in this section any vehicle, vessel, 
or object unless authorized by the Captain of the Port or designated 
representative. Designated representatives are Coast Guard personnel 
authorized by the Captain of the Port to grant persons or vessels 
permission to enter or remain in the safety zone created by this 
section. See 33 CFR part 165, subpart C, for additional information and 
requirements.
    (c) Enforcement Period. The safety zone created in this section is 
effective from 12:01 a.m. on December 14, 2010 until 11:59 p.m. on 
April 15, 2011 unless canceled sooner by the Captain of the Port.

    Dated: December 10, 2010.
S.J. Ferguson,
Captain, U. S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 2010-32543 Filed 12-27-10; 8:45 am]
BILLING CODE 9110-04-P