[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 9110-04-P