[Federal Register Volume 77, Number 69 (Tuesday, April 10, 2012)]
[Rules and Regulations]
[Pages 21433-21436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8545]


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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.

[[Page 21434]]


ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent regulated 
navigation area (RNA) on a portion of Elliott Bay in Seattle, 
Washington. The RNA will 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 will 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: This rule is effective May 10, 2012.

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-2010-1145 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-1145 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 proposed 
rule, call or email LT Ian Hanna, Waterways Management Division, Sector 
Puget Sound, Coast Guard; telephone 206-217-6045, email 
[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 August 1, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled Regulated Navigation Area; Pacific Sound Resources and 
Lockheed Shipyard EPA Superfund Cleanup Sites, Elliott Bay, WA in the 
Federal Register (76 FR 45738). We received 2 comments on the proposed 
rule. No one requested a public meeting and a public meeting was not 
held.

Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are determined 
to have hazardous conditions and in which vessel traffic can be 
regulated in the interest of safety. See 33 U.S.C. 1231 and Department 
of Homeland Security Delegation No. 0170.1.
    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.

Background

    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 
the facility in 1959 and conducted shipbuilding operations there 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.

Discussion of Comments and Changes

    We received two positive comments in favor of the proposed rule. 
One commenter simply expressed support for the proposed rule. The 
second discussed the environmental benefits of creating an RNA that 
protects the sediment cap as well as supported the points made in our 
regulatory analysis. There were no changes made to the rule based on 
these comments.

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. 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. There have been no 
changes to the proposed rule published in Federal Register August 1, 
2011 (76 FR 45738).

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.

[[Page 21435]]

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 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.

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.

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

    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. There were no comments to the NPRM concerning tribal 
implications.

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 Instruction. This rule involves a regulated navigation area which 
prevents activities which would disturb the seabed within the areas 
outlined in this regulation. An environmental analysis checklist and a 
categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

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


0
2. Add Sec.  165.1336 to read as follows:

[[Page 21436]]

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 section 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. 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 the COTP determines 
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: March 25, 2012.
K.A. Taylor,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2012-8545 Filed 4-9-12; 8:45 am]
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