[Federal Register Volume 76, Number 118 (Monday, June 20, 2011)]
[Rules and Regulations]
[Pages 35742-35744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15164]


=======================================================================
-----------------------------------------------------------------------

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: Final rule.

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

SUMMARY: The Coast Guard is amending 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 is also establishing a 
regulated navigation area (RNA) prohibiting activities that disturb the 
seabed around the site. The RNA would not affect transit or navigation 
of the area.

DATES: This rule is effective July 20, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-1119 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-1119 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 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:

Regulatory Information

    On April 12, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled ``Superfund Site, New Bedford Harbor, New Bedford, MA: 
Anchorage Ground and Regulated Navigation Area'' in the Federal 
Register (76 FR 20287). We received no comments on the proposed rule. A 
public meeting was not requested and none was held. The Commonwealth of 
Massachusetts completed a review of this regulatory action and 
concurred that the activity's effects on resources and uses in 
Massachusetts coastal zone are consistent with the Coast Zone 
Management enforceable program policies. The Commonwealth had no 
objection to the Coast Guard implementing the action in less than 90 
days from the date of initial notification as provided in 15 CFR 
930.36(b)(2).

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 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.

Background

    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 Underwater Cap (``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: http://www.epa.gov/nbh. 
While the pilot cap is protective of human health and the environment, 
it remains vulnerable to human actions that tend to disturb the seabed.
    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 RNA would prohibit these specific 
activities without in any way inhibiting surface navigation.

Discussion of Comments and Changes

    The Coast Guard received no comments on the proposed rulemaking. No 
changes were made in the Final Rule.

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.

Executive Order 12866 and Executive Order 13563

    This 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.

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 would affect the following

[[Page 35743]]

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 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
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, 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.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

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 amends 
33 CFR parts 110 and 165 as follows:

[[Page 35744]]

PART 110--ANCHORAGE REGULATIONS

0
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.


0
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

0
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.

0
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 (COTP) Southeastern 
New England, is given advance notice of those activities by the U.S. 
Environmental Protection Agency (EPA).
    (c) Waivers. The Captain of the Port (COTP) Southeastern New 
England 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: June 6, 2011.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2011-15164 Filed 6-17-11; 8:45 am]
BILLING CODE 9110-04-P