[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Proposed Rules]
[Pages 45738-45741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19320]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1145]
RIN 1625-AA11


Regulated Navigation Area; Pacific Sound Resources and Lockheed 
Shipyard EPA Superfund Cleanup Sites, Elliott Bay, Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a permanent regulated 
navigation area (RNA) on a portion of Elliott Bay in Seattle, 
Washington. The RNA would protect the seabed in portions of the bay 
that are subject to the U.S. Environmental Protection Agency (EPA)'s 
Pacific Sound Resources (PSR) and Lockheed Shipyard superfund cleanup 
remediation efforts. This RNA would prohibit activities that would 
disturb the seabed, such as anchoring, dragging, trawling, spudding or 
other activities that involve disrupting the integrity of the sediment 
caps that cover the superfund sites. It will not affect transit or 
navigation of the area.

DATES: Comments and related material must be received by the Coast 
Guard on or before October 31, 2011. Requests for public meetings must 
be received by the Coast Guard on or before September 15, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-1145 using any one of the following methods:
    (1) Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of

[[Page 45739]]

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 LTJG Ian Hanna, Waterways Management Division, 
Sector Puget Sound, Coast Guard; telephone 206-217-6045, 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:[sol][sol]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-2010-1145), 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:[sol][sol]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:[sol][sol]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:[sol][sol]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-
1145'' 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:[sol][sol]www.regulations.gov, click on the ``read comments'' box, 
which will then become highlighted in blue. In the ``Keyword'' box 
insert ``USCG-2010-1145'' 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 September 15, 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.

Background and Purpose

    The PSR superfund site, which is located on the north shore of West 
Seattle within Elliott Bay, and northwest of the mouth of the Duwamish 
river, was created by the EPA to cover the remains of the Wyckoff West 
Seattle Wood Treating Facility. The wood treating facility, which was 
in operation between 1909 and 1994, was mostly located on a pile-
supported facility extending into Elliott Bay. The area was added to 
the federal Superfund National Priorities List in May 1994. Later that 
year the entire wood treatment facility was demolished and 
approximately 4000 cubic yards of highly contaminated soil and process 
sludge were removed from the site. Construction of a subsurface 
physical containment barrier was started in 1996 and completed in 1999. 
The final sediment cap, completed in 2004, is approximately 58-acres 
which includes approximately 1500 linear feet of shoreline, and 
intertidal and subtidal areas to depth of about 300 feet.
    The Lockheed Shipyard Sediment Operable Unit consists of 
contaminated near shore sediments within and adjacent to the Lockheed 
Shipyard on Harbor Island. Harbor Island is located approximately one 
mile southwest of the Central Business District of Seattle, in King 
County, Washington, and lies at the mouth of the Duwamish Waterway on 
the southern edge of Elliott Bay. The Lockheed Shipyard sediments are 
located on the west side of Harbor Island and face the West Waterway of 
the Duwamish Waterway. The final site does not protrude a significant 
distance into the West Duwamish waterway. Lockheed Shipyards acquired 
established shipbuilding operations in 1959 and the facility until 
1986. In April 1997, Lockheed sold the upland property and its legal 
rights to the submerged portions of the site to the Port of Seattle. 
The remedy for the contaminated sediments included demolition of 3 
piers, three shipways and one finger pier. The piers and shipways 
primarily consist of timber superstructures supported by approximately 
6000 piles. Contaminants found in sediments which were either dredged 
or capped are arsenic, copper, lead, mercury, zinc, PAHs and PCBs. The 
metal contaminants were associated with sand blast grit and paint 
clips.
    Remedial actions for both of these sites as established by the EPA 
include preventing use of large anchors on the cap. This rulemaking is 
necessary to assist the EPA in that remedial action.

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Discussion of Proposed Rule

    This rule is necessary to prevent disturbance of the PSR and 
Lockheed Shipyard sediment caps. It does so by restricting anchoring, 
dragging, trawling, spudding or other activities that involve 
disrupting the integrity of the cap in an RNA around the sediment caps. 
This RNA is similar to RNAs which protect other caps in the area. 
Enforcement of this RNA will be managed by Coast Guard Sector Puget 
Sound assets including Vessel Traffic Service Puget Sound through radar 
and closed circuit television sensors. The Captain of the Port Puget 
Sound may also be assisted by other government agencies in the 
enforcement of this zone.

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.

Regulatory Planning and Review

    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. This expectation is based 
on the fact that the RNA 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 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 RNA would not 
have a significant economic impact on small entities due to its minimal 
restrictive area and the opportunity for a waiver to be granted for any 
legitimate use of the seabed.
    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 LTJG Ian Hanna, Waterways 
Management, Sector Puget Sound, Coast Guard; telephone 206-217-6045, 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 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

    In preparation for this rulemaking, on October 8, 2010, Sector 
Puget Sound conducted a tribal consultation with representatives from 
the Suquamish and Muckleshoot tribes in accordance with Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments. 
The group noted that the sediment caps were in the usual and accustomed 
(U&A) fishing grounds of both tribes. Their main concern was that this 
RNA would prohibit them from exercising their U&A fishing. The Coast 
Guard and EPA clarified that nothing in this rulemaking is intended to 
conflict with these tribes' treaty fishing rights and they are not 
restricted from any type of fishing in the described areas. As a result 
of the consultation the Coast Guard added paragraph b.(3) to the 
regulation.

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

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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 that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES.
    This proposed rule involves 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). We seek any comments or information that 
may lead to the discovery of a significant environmental impact from 
this proposed rule.

List of Subjects in 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 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; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  165.1336 to read as follows:


Sec.  165.1336  Regulated Navigation Area; Pacific Sound Resources and 
Lockheed Shipyard Superfund Sites, Elliott Bay, Seattle, WA.

    (a) Regulated Areas. The following areas are regulated navigation 
areas:
    (1) All waters inside an area beginning at a point on the shore at 
47[deg]35'02.7'' N 122[deg]22'23.00'' W; thence north to 
47[deg]35'26.00'' N 122[deg]22'23.00'' W; thence east to 
47[deg]35'26.00'' N 122[deg]21'52.50'' W; thence south to 
47[deg]35'10.80'' N 122[deg]21'52.50'' W; thence southwest to a point 
on the shoreline at 47[deg]35'05.9'' N 122[deg]21'58.00'' W. [Datum: 
NAD 1983].
    (2) All waters inside an area beginning at 47[deg]34'52.16'' N 
122[deg]21'27.11'' W; thence to 47[deg]34'53.46'' N 122[deg]21'30.42'' 
W; thence to 47[deg]34'37.92'' N 122[deg]21'30.51'' W; thence to 
47[deg]34'37.92'' N 122[deg]21'27.65'' W. [Datum: NAD 1983].
    (b) Regulations.
    (1) 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 sediment caps installed in the designated regulated navigation 
area, pursuant to the remediation efforts of the U.S. Environmental 
Protection Agency (EPA) and others in the Pacific Sound Resources and 
Lockheed Shipyard EPA superfund sites. Vessels may otherwise transit or 
navigate within this area without reservation.
    (2) The prohibition described in paragraph (b)(1) of this section 
does not apply to vessels or persons engaged in activities associated 
with remediation efforts in the superfund sites, provided that the 
Captain of the Port, Puget Sound (COTP), is given advance notice of 
those activities by the EPA.
    (3) Nothing in this rulemaking is intended to conflict with treaty 
fishing rights of the Muckleshoot and Suquamish tribes, and they are 
not restricted from any type of fishing in the described area.
    (c) Waivers.
    (1) Upon written request stating the need and proposed conditions 
of the waiver, and any proposed precautionary measures, the COTP may 
authorize a waiver from this section if they determine that the 
activity for which the waiver is sought can take place without undue 
risk to the remediation efforts described in paragraph (b)(1) of this 
section. The COTP will consult with EPA in making this determination 
when necessary and practicable.

    Dated: July 6, 2011.
G.T. Blore,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2011-19320 Filed 7-29-11; 8:45 am]
BILLING CODE 9110-04-P