[Federal Register Volume 85, Number 2 (Friday, January 3, 2020)]
[Rules and Regulations]
[Pages 212-214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27980]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0970]
RIN 1625-AA11


Regulated Navigation Area; Thea Foss, Middle Waterway, and 
Wheeler-Osgood Waterways EPA Superfund Cleanup Site, Commencement Bay, 
Tacoma, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: The Coast Guard is amending the Thea Foss and Wheeler-Osgood 
Regulated Navigation Area (RNA) for Commencement Bay to establish a 
permanent regulated navigation area within the Middle Waterway. This 
action is necessary to protect sediment cap areas in the U.S. 
Environmental Protection Agency's Commencement Bay Nearshore-Tideflats 
Superfund Cleanup Site within the Middle Waterway. This RNA would 
prohibit certain activities that could disrupt the integrity of the 
engineered sediment caps placed within the Middle Waterway.

DATES: This rule is effective February 3, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0970 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
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

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On April 5, 2005, the Middle Waterway Action Committee requested 
the establishment of a regulated navigation area to prohibit activities 
that could compromise the integrity of the sediment caps placed over 
the contaminated sites within the Middle Waterway. In 2006 and 2015, 
the Coast Guard issued NPRMs related to this issued but never finalized 
the rule. On March 6, 2019, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled Regulated Navigation Area; Thea Foss 
and Wheeler-Osgood Waterways EPA Superfund Cleanup Site, Commencement 
Bay, Tacoma, WA 84 FR 8051. There we stated why we issued the NPRM, and 
invited comments on our proposed regulatory action related to this 
regulated navigation area. During the comment period that ended April 
6, 2019, we received two comments.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Coast Guard District Thirteen 
Commander has determined that there are potential hazards associated 
with the five Environmental Protection Agency's Superfund Cleanup Sites 
located within the Middle Waterway. The purpose of this rule is to 
ensure safety of persons and environment within the navigable waters of 
the Middle Waterway by prohibiting activities that could compromise the 
integrity of the engineered sediment caps.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our NPRM published 
March 6, 2019. One comment we received was in support of the rule.
    The second comment discussed current marine operations prohibited 
by this rule, these operations include marine piling construction, 
anchoring system for a dry-dock, and other mooring systems. The 
commenter discussed these operations occur within the proposed 
regulated navigation area but outside of the five separate contaminated 
sites contained within the Middle Waterway Regulated Navigation Area. 
Additionally, the comment discussed concerns over the ingress and 
egress of tugboats within the designated area.
    The Coast Guard is aware marine operations occur within the 
regulated navigation area that do disturb the seabed outside of the 
contaminated Superfund cleanup sites. In the initial request for a 
regulated navigation area submitted by the Middle Waterway Action 
Committee, April 5, 2005, we were informed of the dry-dock anchored 
outside one of the sediment caps within the waterway. The COTP, upon 
written request, may authorize a waiver from this regulation. The COTP 
will consult with the Environmental Protection Agency in making this 
determination when necessary and practicable.
    The vessel traffic navigating within the regulated navigation area 
is not prohibited by this regulation and therefore falls outside the 
scope of this rulemaking.
    There are no changes in the regulatory text of this rule from the 
proposed rule in the NPRM.
    This rule amends the Thea Foss and Wheeler Osgood Waterway by 
establishing a permanent regulated navigation area for the Middle 
Waterway. The purpose of this rule is to prevent the disturbance of the 
five sediment caps established within the Middle Waterway Problem Area 
of the Superfund Cleanup Site that are not geographically encompassed 
by the

[[Page 213]]

Thea Foss and Wheeler-Osgood Waterways RNA. Disrupting the integrity of 
the caps in this area may result in a hazardous condition harming 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 cause disturbance or 
damage.

V. Regulatory Analyses

    We developed this 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 rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule 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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
regulated navigation area may be small entities, for the reasons stated 
in section V.A above, this rule will not have a significant economic 
impact on any vessel owner or operator.
    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 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.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will 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 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 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 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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this 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 determined 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 rule involves 
amending a regulated navigation area that would prohibit activities 
that could disturb the engineered sediment caps on the seabed. It is 
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 
Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES.

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

[[Page 214]]

jeopardizing the safety or security of people, places or vessels.

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 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:  46 U.S.C. 70034, 70051; 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]26'01.1214'' 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: September 26, 2019.
A.J. Vogt,
RADM, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.
[FR Doc. 2019-27980 Filed 1-2-20; 8:45 am]
 BILLING CODE 9110-04-P