[Federal Register Volume 80, Number 137 (Friday, July 17, 2015)]
[Proposed Rules]
[Pages 42440-42443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17481]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-0004]
RIN 1625-AA11


Regulated Navigation Area; Middle Waterway Superfund Cleanup 
Site, Commencement Bay; Tacoma, WA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a regulated navigation 
area (RNA) on the Middle Waterway in Tacoma, Washington. The RNA will 
protect the sediment cap areas in the U.S. Environmental Protection 
Agency (EPA)'s Commencement Bay Nearshore/Tideflats (CB-NT) Superfund 
Cleanup Site in the Middle Waterway Problem Area. This regulated 
navigation area would prohibit activities that could disrupt the 
integrity of the engineered sediment caps that have been placed within 
the Middle Waterway Problem Area. These activities include vessel 
grounding, anchoring, dragging, trawling, spudding or other such 
activities that would disturb the integrity of the sediment caps. It 
will not affect transit or navigation of this area or the existing 
industrial activities occurring in this area.

DATES: Comments and related material must be received by the Coast 
Guard on or before October 15, 2015. Requests for public meetings must 
be received by the Coast Guard on or before August 17, 2015.

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 Johnny Zeng, Waterways Management Division, Sector 
Puget Sound, U.S. Coast Guard; telephone (206) 217-6175, email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Cheryl Collins, 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://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

[[Page 42441]]

we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number [USCG-2015-0004] 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-2015-0004) 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 requesting the 
establishment of a Regulated Navigation Area (RNA) for the Middle 
Waterway Problem Area of the CB-NT Superfund Cleanup Site in Tacoma, 
Washington. This request was received as a result of the need to 
protect the engineered sediment caps in the Middle Waterway from 
activities that could disrupt the integrity of the caps within the CB-
NT Superfund Cleanup Site.
    The CB-NT was added to the U.S. EPA's National Priorities List 
(Superfund) in September 1983 because of hazardous substance 
contamination in the sediment. The EPA selected the Middle Waterway 
Problem Area for remedial action, and subsequently cleanup activities 
were conducted pursuant to the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA).
    Remediation activities identified for the Middle Waterway included 
dredging, placement of enhanced natural recovery material, placement of 
caps, and natural recovery. The caps consist of approximately three 
feet of sand and gravel and light-loose riprap, and were placed in 
various locations within the waterway to contain the contaminated 
sediments. These caps were designed to withstand activities common to a 
working waterfront. The cap areas cover approximately two acres of 
sediment in the waterway. Construction activities were initiated in 
July 2003 and completed in January 2005. A Remedial Action Completion 
Report documenting the cleanup activities was completed and approved by 
the U.S. EPA in April 2005.

C. 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. 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 sediment caps established in the Middle 
Waterway Problem Area of the CB-NT Superfund Cleanup Site. Disruption 
of the integrity of the caps may result in a hazardous condition and 
harm to the marine environment. As such, this RNA is necessary to 
protect the integrity of the caps and will do so by prohibiting 
maritime activities that could disturb or damage them. 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 on the Middle 
Waterway to protect the sediment caps in the Middle Waterway Problem 
Area of the CB-NT Superfund Site. It would do so by restricting vessel 
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. Activities common in the 
proposed regulated areas include tugboat and log-rafting activities, 
tugboat moorage, removal and launching of ships for repair, and other 
ship repair and maintenance activities. The cap areas were designed to 
be compatible with the activities described above that are associated 
with a working waterfront. The material used for the caps was chosen to 
be able to contain underlying sediments without altering the main 
activities of the working waterway.

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 activities are not routine for the designated areas.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small

[[Page 42442]]

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 will not have a 
significant economic impact on a substantial number of small entities. 
This proposed 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 small area and 
waiver process for legitimate use.
    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 proposed 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 proposed 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 FOR FURTHER 
INFORMATION CONTACT. 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 rulemaking 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 
rulemaking 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 proposed rule is not economically significant 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 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. The 
Coast Guard and EPA consulted with the Puyallup tribe in coming to this 
determination.

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 proposed rule is categorically excluded from further 
review under paragraph 34(h) 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.

33 CFR Part 165

    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

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


[[Page 42443]]


0
2. Add Sec.  165.1342 to subpart F under the undesignated center 
heading Thirteenth Coastguard District to read as follows:


Sec.  165.1342  Regulated Navigation Area; Middle Waterway Superfund 
Cleanup Site, Commencement Bay; Tacoma, WA

    (a) Regulated Areas. The following areas are regulated navigation 
areas: All waters within the Middle Waterway south of a line connecting 
a point on the shore at 47[deg]15'51'' N, 122[deg]25'53'' W; thence 
southwest to 47[deg]15'47'' N, 122[deg]25'59'' W [Datum: NAD 1983].
    (b) Regulations. (1) All vessels and persons are prohibited from 
activities that would disturb the seabed, such as grounding, anchoring, 
dragging, trawling, spudding, or other activities that involve 
disrupting the integrity of the caps within the designated regulated 
navigation area, pursuant to the remediation efforts of the U.S. 
Environmental Protection Agency (EPA) in the Middle Waterway's EPA 
superfund cleanup site. 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 Middle Waterway superfund sites, 
provided that the Captain of the Port, Puget Sound (COTP), is given 
advance notice of those activities by the EPA.
    (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: June 22, 2015.
R. T. Gromlich,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2015-17481 Filed 7-16-15; 8:45 am]
 BILLING CODE 9110-04-P