[Federal Register Volume 76, Number 70 (Tuesday, April 12, 2011)]
[Proposed Rules]
[Pages 20287-20290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8518]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 110 and 165

[Docket No. USCG-2010-1119]
RIN 1625-AA01; 1625-AA11


Superfund Site, New Bedford Harbor, New Bedford, MA: Anchorage 
Ground and Regulated Navigation Area

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend an existing anchorage ground 
which currently overlaps a pilot underwater cap (``pilot cap'') in the 
U.S. Environmental Protection Agency's (EPA) New Bedford Harbor 
Superfund Site in New Bedford, MA. The Coast Guard also proposes to 
establish a regulated navigation area (RNA) prohibiting activities that 
disturb the

[[Page 20288]]

seabed around the site. The proposed RNA would not affect transit or 
navigation of the area.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 12, 2011. Requests for public meetings must be 
received by the Coast Guard on or before April 27, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-1119 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) 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.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Lieutenant Junior Grade Isaac Slavitt, Waterways 
Management Branch, First Coast Guard District; telephone 617-223-8385, 
e-mail [email protected]. 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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-1119), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2010-1119'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand 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 comments 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 and may change 
the rule based on your comments.

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, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-1119'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of 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 a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before April 27, 2011 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting 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.

Basis and Purpose

    The legal basis for the proposed rule is 33 U.S.C. 471, 1221-1236, 
2030, 2035, and 2071; 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; and Department of Homeland 
Security Delegation No. 0170.1, which collectively authorize the Coast 
Guard to define regulatory anchorage grounds and RNAs.
    The purpose of the proposed rule is to minimize the potential for 
human exposure to contamination and to help protect the integrity of 
the EPA's remedy at a portion of the New Bedford Harbor Superfund Site 
by reducing an existing anchorage ground so that it no longer overlaps 
the pilot cap, and by placing the pilot cap in a RNA that would protect 
the site from damage by mariners, and protect mariners and the general 
public from contaminants in the site.
    The New Bedford Superfund cleanup site is an urban tidal estuary 
with sediments contaminated by polychlorinated biphenyls (PCBs) and 
heavy metals. An extensive history and background of the cleanup 
project can be found on the EPA's Web site, at http://www.epa.gov/nbh/.
    The specific cleanup project and surrounding area addressed by this 
regulation is the pilot cap, which is located south of the New Bedford 
Harbor hurricane barrier in the outer harbor. The pilot cap consists of 
sand and gravel covering approximately 20 acres of contaminated 
sediments. Based on data collected in 2010, the thickness of the cap is 
predominantly one to two feet (98% of the cap area has a thickness 
greater than one foot; 68% greater than two feet; and in a few isolated 
areas, the thickness is up to 6.4 feet). A copy of the latest data for 
the pilot cap area can be found on EPA's Web site for New Bedford 
Harbor. While the pilot cap is protective of human health and the 
environment, it remains vulnerable to human actions that tend to 
disturb the seabed.

[[Page 20289]]

    Several maritime practices that involve physical contact with the 
seabed (e.g., anchoring, dragging, trawling, and spudding) pose a 
specific threat to the pilot cap. It is also conceivable that PCBs or 
heavy metals could stick to gear penetrating the seabed; any 
contaminants that come up with gear could create a threat to human 
health and the environment. The proposed RNA would prohibit these 
specific activities without in any way inhibiting surface navigation.

Discussion of Proposed Rule

    Presently, anchorage ground ``B'' designated in 33 CFR 110.140 
directly overlaps the pilot cap, which is particularly susceptible to 
damage by anchoring. To avoid that damage we propose amending anchorage 
ground ``B'' by moving its northern boundary sufficiently southward 
such that it no longer overlaps with the pilot cap. Although this would 
reduce the anchorage ground's area by roughly half, we do not expect 
this to pose a significant inconvenience to mariners because anchorage 
``A'' is located nearby and is much larger.
    Additionally, we propose establishing a RNA around the pilot cap. 
Anchoring, dragging, trawling, spudding, or any other action making 
contact with the seabed would be prohibited without the express 
permission of the Captain of the Port (COTP) Coast Guard Sector 
Southeastern New England, in consultation with the EPA; waivers could 
be requested in writing. Transit or navigation activities that do not 
make contact with the seabed would not be affected.

Regulatory Analyses

    We developed this proposed 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.

Executive Order 12866 and Executive Order 13563

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
as supplemented by Executive Order 13563, 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.
    We expect minimal additional cost impacts to industry because this 
rule would not affect normal surface navigation. Although this 
regulation may have some impact on the public, the potential impact 
will be minimized for the following reasons: normal surface navigation 
will not be affected; approximately half of the existing anchorage area 
will still be available for use; the number of vessels using the 
anchorage is limited due to depth (less than or equal to 18 feet); and 
anchoring over the pilot cap could pose a risk to human health and the 
environment, making it an already unattractive option.

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 proposed rule would affect the following 
entities, some of which might be small entities: The owners or 
operators of recreational and small fishing vessels intending to anchor 
in New Bedford's outer harbor.
    The proposed rule would not have a significant economic impact on a 
substantial number of small entities for the following reasons: Normal 
surface navigation will not be affected; approximately half of the 
existing anchorage area will still be available for use, and there is 
another, much larger anchorage nearby; the number of vessels using the 
anchorage is limited due to draft (less than or equal to 18 feet); and 
anchoring over the pilot cap could pose a risk to human health and the 
environment, making it an already unattractive option.
    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 Lieutenant Junior Grade Isaac 
Slavitt, Waterways Management Branch, First Coast Guard District; 
telephone 617-223-8385, e-mail [email protected]. The Coast 
Guard will not retaliate against small entities that question or 
complain about this proposed 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 (adjusted for 
inflation) 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 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 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

[[Page 20290]]

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 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. Preliminary NEPA 
documentation is available in the docket for this proposed rule. We 
believe the proposed rule would be categorically excluded, under figure 
2-1, paragraphs (34)(f) and (34)(g) of the Instruction because it 
involves shrinking an existing anchorage ground, and establishing an 
RNA prohibiting activities that disturb the seabed. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

List of Subjects

33 CFR Part 110

    Anchorage grounds.

33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR parts 110 and 165 as follows:

PART 110--ANCHORAGE REGULATIONS

    1. The authority citation for part 110 continues to read as 
follows:

    Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 
33 CFR 1.05-1; Department of Homeland Security Delegation No. 
0170.1.

    2. Amend Sec.  110.140, by revising paragraph (a)(2) to read as 
follows:


Sec.  110.140  Buzzards Bay, Nantucket Sound, and adjacent waters, 
Mass.

    (a) * * *
    (2) Anchorage B. All waters bounded by a line beginning at 
41[deg]36'42.3'' N, 070[deg]54'24.9'' W; thence to 41[deg]36'55.5'' N, 
070[deg]54'06.6'' W; thence to 41[deg]36'13.6'' N, 070[deg]53'40.2'' W; 
thence to 41[deg]36'11.1'' N, 070[deg]54'07.6'' W; thence along the 
shoreline to the beginning point.
* * * * *

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    3. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 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; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    4. Add Sec.  165.125 to read as follows:


Sec.  165.125  Regulated Navigation Area; EPA Superfund Site, New 
Bedford Harbor, Massachusetts.

    (a) Location. The regulated navigation area encompasses all waters 
bounded by a line beginning at 41[deg]37'22.5'' N, 070[deg]54'34.1'' W; 
thence to 41[deg]37'14.4'' N, 070[deg]54'19.6'' W; thence to 
41[deg]36'58.5'' N, 070[deg]54'08.1'' W; thence to 41[deg]36'45.0'' N, 
070[deg]54'26.9'' W; thence along the shoreline and south side of the 
hurricane barrier to the beginning point.
    (b) Regulations. (1) All vessels and persons are prohibited from 
activities that would disturb the seabed within the regulated 
navigation area, including but not limited to, anchoring, dragging, 
trawling, and spudding. Vessels may otherwise transit or navigate 
within this area without reservation.
    (2) The prohibition described in paragraph (b)(1) of this section 
shall not apply to vessels or persons engaged in activities associated 
with remediation efforts in the New Bedford Harbor Superfund Site, 
provided that the Coast Guard Captain of the Port Southeastern New 
England (COTP) is given advance notice of those activities by the U.S. 
Environmental Protection Agency (EPA).
    (c) Waivers. The COTP may, in consultation with the U.S. EPA, 
authorize a waiver from this section if he or she determines that the 
proposed activity can be performed without undue risk to environmental 
remediation efforts. Requests for waivers should be submitted in 
writing to Commander, U.S. Coast Guard Sector Southeastern New England, 
1 Little Harbor Road, Woods Hole, MA, 02543, with a copy to the U.S. 
Environmental Protection Agency, Region 1, New Bedford Harbor Remedial 
Project Manager, 5 Post Office Square, Suite 100 (OSRR07), Boston, MA 
02109, to facilitate review by the EPA and U.S. Coast Guard.

    Dated: March 24, 2011.
J.A. Servidio,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard 
District.
[FR Doc. 2011-8518 Filed 4-11-11; 8:45 am]
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