[Federal Register Volume 79, Number 77 (Tuesday, April 22, 2014)]
[Proposed Rules]
[Pages 22459-22462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07834]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0293]
RIN 1625-AA11


Regulated Navigation Area; Slip 4 Early Action Area Superfund 
Site, Lower Duwamish Waterway, Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Coast Guard proposes to establish a regulated navigation 
area (RNA) on a portion of the Lower Duwamish Waterway in Seattle, 
Washington. The RNA will protect the riverbed in the U.S. Environmental 
Protection Agency (EPA)'s Slip 4 Early Action Area (EAA). This RNA 
would prohibit activities that could disrupt the integrity of the 
engineered sediment and slope caps that have been placed within the 
Slip 4 EAA. These activities include vessel grounding, anchoring, 
dragging, trawling, spudding or other such activities that would 
disturb the riverbed. It will not affect transit or navigation of this 
area.

DATES: Comments and related material must be received by the Coast 
Guard on or before July 21, 2014.

ADDRESSES: You may submit comments identified by docket number using 
any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail or Delivery: 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. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LTJG Nathaniel Clinger, Waterways Management Division, 
Sector Puget Sound, U.S. Coast Guard; telephone (206) 217-6045, email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Barbara Hairston, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking

A. 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.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, 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 at 
http://

[[Page 22460]]

www.regulations.gov, or by fax, mail, or hand delivery, but please use 
only one of these means. If you submit a comment online, 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 email 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, 
type the docket number [USCG-2013-0293] in the ``SEARCH'' box and click 
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with 
this rulemaking.
    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.

2. 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, 
type the docket number (USCG-2013-0293) in the ``SEARCH'' box and click 
``SEARCH.'' Click on Open Docket Folder on the line associated with 
this rulemaking. 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.

3. 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).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one, using one of the 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.

B. Regulatory History and Information

    The Coast Guard received notice from the U.S. EPA on 28 February, 
2013, requesting the establishment of an RNA for Slip 4 EAA located in 
the Lower Duwamish Waterway Superfund Site, Seattle, Washington. This 
request was received as a result of the need to protect the riverbed in 
the Lower Duwamish Waterway (LDW) from activities that could disrupt 
the integrity of the engineered sediment and slope caps that have been 
placed within the Slip 4 EAA to isolate underlying contaminated 
sediments.
    The LDW was added to the U.S. EPA's National Priorities List 
(Superfund) in September 2001 because of hazardous substance 
contamination in sediments. Slip 4 was subsequently identified by the 
EPA and the Washington Department of Ecology as EAA within the LDW, 
based primarily on elevated concentrations of polychlorinated biphenyls 
(PCBs). Slip 4 EAA cleanup activities were conducted pursuant to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), under U.S. EPA's non-time-critical removal action (NTCRA) 
authority. In May 2006, U.S. EPA issued an Action Memorandum containing 
its removal action decision for the Slip 4 EAA. The Slip 4 EAA removal 
action was conducted by the City of Seattle (City) under an 
administrative settlement agreement and order on consent (ASAOC), 
CERCLA Docket No. 10-2006-0364.
    The selected removal action required dredging, excavation, and 
offsite disposal of 17,202 tons of contaminated sediment, shoreline, 
soil, and creosote-treated timber piles and other debris, and placement 
of engineered sediment and slope caps throughout the EAA (approximately 
3.43 acres) to isolate residual sediment contamination within the EAA. 
In addition, the removal action included demolition and removal/
recycling of a portion of an aging concrete pier and supporting piling 
on the northwest bank of the slip, and creation of two intertidal beach 
areas and other shallow-water areas to improve habitat conditions in 
the slip. Construction activities were initiated in October 2011 and 
completed in February 2012. A Removal Action Completion Report 
documenting the cleanup activities was completed and approved by the 
U.S. EPA in July 2012.

C. Basis and Purpose

    Coast Guard District Commanders are granted authority under 33 CFR 
165.11 to regulate vessel traffic in areas with hazardous conditions. 
This rule is necessary to prevent disturbance of the Slip 4 EAA 
sediment and slope caps. Disruption of the caps may result in a 
hazardous condition and harm to the marine environment. As such, this 
RNA is necessary to protect the caps and will do so by prohibiting 
maritime activities that could disturb or damage them. 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 state, local, or government agencies in the 
enforcement of this rule.

D. Discussion of Proposed Rule

    The Coast Guard proposes to establish a permanent RNA in the LDW to 
protect the sediment and slope caps in the Slip 4 EAA, Superfund Site 
(EPA ID No. WA0002329803). It would do so by restricting anchoring, 
dragging, trawling, spudding or other activities that could disrupt the 
integrity of the caps and the underlying contaminated sediments located 
in the proposed RNA.

E. Regulatory Analyses

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

1. 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, 
as supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. 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 the prohibited

[[Page 22461]]

activities are not routine for the designated areas.

2. Impact on Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered the impact of this proposed rule on small entities. The 
Coast Guard certifies under 5 U.S.C. 605(b) that this proposed 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, drag, dredge, trawl, spud, or disturb the riverbed 
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 riverbed.
    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.

3. 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. 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 the person listed in the FOR FURTHER INFORMATION 
CONTACT, above. 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.

4. Collection of Information

    This proposed rule will not call for a new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this proposed rule under that Order and 
determined that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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.

8. 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.

9. 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.

10. Protection of Children From Environmental Health Risks

    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.

11. Indian Tribal Governments

    This proposed rule was determined to have potential tribal 
implications under Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments, because it regulates navigation on 
waters subject to treaty fishing rights held by Indian Tribal 
Governments. The Coast Guard and EPA consulted with the Muckleshoot and 
Suquamish Tribes. To accommodate treaty fishing activity in usual and 
accustomed places, which fall within the area covered by the sediment 
cap, the Coast Guard included an exception for treaty fishing activity 
by Indian Tribes holding such fishing rights.

12. Energy Effects

    This proposed rule is not a ``significant energy action'' under 
Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. 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. This proposed rule 
involves a regulated navigation area which prevents activities which 
would disturb the riverbed within the areas outlined in this 
regulation. This rule is categorically excluded from further review 
under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A 
preliminary environmental analysis checklist supporting this 
determination and a Categorical Exclusion Determination are available 
in the docket where indicated under ADDRESSES. 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 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;

[[Page 22462]]

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.T13-246 to read as follows:


Sec.  165.T13-246  Regulated Navigation Area; Slip 4 Early Action Area 
Superfund Site, Lower Duwamish Waterway, Seattle, WA.

    (a) Regulated Areas. The following areas are regulated navigation 
areas: All waters within the northern portion of Slip 4 bounded by the 
shoreline and the southern boundary of the EAA defined as the line 
beginning at a point on the shore at 47[deg]32'08.47'' N, 
122[deg]19'12.00'' W; thence southeast to a point on the shoreline at 
47[deg]32'07.02'' N, 122[deg]19'09.23'' W [Datum: NAD 1983/91].
    (b) Regulations. (1) All vessels and persons are prohibited from 
grounding, anchoring, dragging, trawling, spudding, or otherwise 
contacting the riverbed within the designated regulated navigation 
area. Vessels may otherwise transit or navigate within this area in 
accordance with the Navigation Rules.
    (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) The prohibition described in paragraph (b) (1) of this section 
does not apply to vessels or person engaged in fishing activities 
pursuant to fishing rights held by treaty with the United States.
    (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: February 26, 2014.
R.T. Gromlich,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2014-07834 Filed 4-21-14; 8:45 am]
BILLING CODE 9110-04-P