[Federal Register Volume 84, Number 44 (Wednesday, March 6, 2019)]
[Proposed Rules]
[Pages 8051-8053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04070]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2018-0970]
RIN 1625-AA11
Regulated Navigation Area; Thea Foss and Wheeler-Osgood Waterways
EPA Superfund Cleanup Site, Commencement Bay, Tacoma, WA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking; withdrawal of two previous
notices of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to amend the Thea Foss and Wheeler-
Osgood Regulated Navigation Area (RNA) for Commencement Bay to include
portions of the Middle Waterway in Tacoma, Washington. This proposed
amendment would protect sediment cap areas in the U.S. Environmental
Protection Agency's Commencement Bay Nearshore-Tideflats Superfund
Cleanup Site within the Middle Waterway Problem Area that are not
geographically encompassed by the existing Thea Foss and Wheeler-Osgood
RNA. The modified RNA would prohibit certain activities that could
disrupt the integrity of the engineered sediment caps that have been
placed within the Middle Waterway Problem Area. We invite your comments
on this proposed rulemaking.
DATES: Comments and related material must be received by the Coast
Guard on or before April 5, 2019.
ADDRESSES: You may submit comments identified by docket number USCG-
2018-0970 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email Petty Officer Zachary Spence, Sector
Puget Sound Waterways Management Branch, U.S. Coast Guard; telephone
206-217-6051, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CB-NT Commencement Bay Nearshore-Tideflats
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
RNA Regulated navigation area
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
The Middle Waterway is part of the Commencement Bay Nearshore-
Tideflats Environmental Protection Agency Superfund Cleanup Site, and
is located between the Thea Foss Waterway and the St. Paul Waterway in
Commencement Bay, Washington. The Coast Guard has engaged in
preliminary discussions with the Middle Waterway Action Committee to
establish a RNA for certain portions of the Middle
[[Page 8052]]
Waterway of Commencement Bay, Tacoma, WA, to protect five engineered
sediment caps from activities that could disrupt the integrity of the
caps within the CB-NT Superfund Cleanup Site. While the Thea Foss and
Wheeler-Osgood Waterways EPA Superfund Cleanup Site, 33 CFR 165.1329,
protects certain sites outside the Middle Waterway, sediment caps
within the Middle Waterway are not currently protected.
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 proposed rule is necessary to prevent disturbance of the
sediment caps established in the Middle Waterway Problem Area of the
Superfund Cleanup Site that are not geographically encompassed by the
Thea Foss and Wheeler-Osgood Waterways RNA. Disruption of the integrity
of the caps in this area may result in a hazardous condition and harm
to the marine environment and the public. Therefore, this proposed RNA
expansion 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 amended RNA would be managed by Coast Guard
assets including Vessel Traffic Service Puget Sound through vessel
Automated Identification System monitoring. The Captain of the Port
Puget Sound might also be assisted by other state, local, or government
agencies in the enforcement of this proposed rule.
In 2006 and 2015, the Coast Guard issued NPRMs related to this
issue. As reflected in their identical titles, ``Regulated Navigation
Area; Middle Waterway EPA Superfund Cleanup Site, Commencement Bay,
Tacoma, WA,'' both were focused on the Middle Waterway site. No
comments were submitted in response to either NPRM (71 FR 12654, March
13, 2006, and 80 FR 42440, July 17, 2015) nor did we publish any other
documents in either of those rulemakings. We are withdrawing those
NPRMs because we have decided to start with this new NPRM to address
this issue by expanding the Thea Foss and Wheeler-Osgood Waterways EPA
Superfund Cleanup Site, Commencement Bay, Tacoma, WA RNA, which was
established in 2010, to encompass the Middle Waterway sediment caps.
III. Discussion of Proposed Rule
The Coast Guard proposes to amend an existing RNA, the Thea Foss
and Wheeler-Osgood Waterways EPA Superfund Cleanup Site, 33 CFR
165.1329, to include the Middle Waterway. Within this designated area,
vessels would be prohibited from conducting certain activities,
including anchoring, trawling, spudding, or other activities that
involve disturbing the integrity of the sediment caps. Activities that
involve remediation efforts of the CB-NT Superfund Cleanup Site would
not be prohibited. In addition, we propose to amend the title of the
section to include the Middle Waterway. The amended portion of this RNA
encompasses approximately 0.074 additional square miles of the
waterway. The regulatory text we are proposing appears at the end of
this document.
IV. 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 and executive orders and
we discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This NPRM has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the NPRM has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the small
geographic area encompassed by the RNA, and the limited amount of
commercial and recreational traffic passing through the area.
Additionally, prohibited activities are not routine in the designated
area.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 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 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.
While some owners or operators of vessels intending to transit the
regulated navigation area may be small entities, for the reasons stated
in section IV.A above, this proposed rule would not have a significant
economic impact on any vessel owner or operator.
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.
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
section. 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.
C. Collection of Information
This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
D. Federalism and Indian Tribal Governments
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
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
In preparation for this rulemaking, we identified the area
encompassed by the proposed rule overlaps with the usual and accustomed
fishing grounds for the Puyallup and Muckleshoot tribes. We
[[Page 8053]]
informed both tribes of the proposed rulemaking, but only received a
response from the Muckleshoot tribe. We conducted a meeting with the
Muckleshoot tribe's Fish Commission on September 12, 2018. During this
meeting, the Muckleshoot Fish Commission and the Coast Guard discussed
potential impacts of the proposed rulemaking on the Muckleshoot tribe.
Following the meeting, the Coast Guard concluded that this proposed
rule does not have tribal implications under Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, as 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.
If you believe this proposed rule has implications for federalism
or Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
E. 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.
F. Environment
We have analyzed this proposed rule under Department of Homeland
Security Directive 023-01 and Commandant Instruction M16475.1D, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (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 amending a regulated
navigation area that would prohibit activities that could disturb the
engineered sediment caps on the seabed. Normally such actions are
categorically excluded from further review under paragraph L60(a) of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A
preliminary Record of Environmental Consideration supporting this
determination is 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.
G. 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.
V. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. 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.
We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit http://www.regulations.gov/privacyNotice.
Documents mentioned in this NPRM as being available in the docket,
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.
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
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.
0
2. In Sec. 165.1329, revise the section heading, add paragraph (a)(4),
and revise paragraphs (b)(1) and (2) to read as follows:
Sec. 165.1329 Regulated Navigation Area; Thea Foss, Middle Waterway,
and Wheeler-Osgood Waterways EPA Superfund Cleanup Site, Commencement
Bay, Tacoma, WA.
(a) * * *
(4) All waters of the Middle Waterway south of a line connecting a
point of the shore at 47[deg]15'51'' N, 122[deg]25'53'' W; thence
southwest to 47[deg]15'48.6858'' N, 122[deg]26'02.2374'' W; thence
south to 47[deg]15'46.7316'' N, 122[deg]26'1.1214'' W [Datum: NAD
1983].
(b) * * * (1) All vessels and persons are prohibited from
activities that would disturb the seabed, such as anchoring, dragging,
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 Thea Foss, Middle Waterway,
and Wheeler-Osgood Waterways EPA superfund cleanup site. 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 Thea Foss, Middle Waterway, or Wheeler-
Osgood Waterways superfund sites, provided that the Captain of the
Port, Puget Sound (COTP), is given advance notice of those activities
by the EPA.
* * * * *
Dated: March 1, 2019.
David G. Throop,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard
District.
[FR Doc. 2019-04070 Filed 3-5-19; 8:45 am]
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