[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72559-72561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33581]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
RIN 2115-AE84
[CGD13-98-004]
Regulated Navigation Area, Eagle Harbor, Bainbridge Island, WA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing a permanent regulated
navigation area on a portion of Eagle Harbor, Bainbridge Island,
Washington. This regulated navigation area is required to preserve the
integrity of a clean sediment cap placed over contaminated seabed as
part of the remediation process at a U.S. Environmental Protection
Agency (USEPA) Superfund site. It is being established at the request
of the USEPA and the Washington State Department of Natural Resources.
It prohibits activities that would disturb the seabed, such as
anchoring, dredging, or laying cable, with the exception of EPA managed
remedial design, remedial action, habitat mitigation, or monitoring
activities associated with the Wyckoff/Eagle Harbor Superfund Site. It
would not affect transit or navigation of the area.
DATES: Effective: January 27, 2000.
ADDRESSES: Unless otherwise indicated, comments and material received
from the public, as well as documents referred to in this preamble, are
part of docket CGD13-98-004 and are available for inspection or copying
at U.S. Coast Guard Marine Safety Office Puget Sound, 1519 Alaskan Way
South, Building 1, Seattle, Washington 98134. Normal office hours are
between 7 a.m. and 5 p.m., Monday through Friday, except federal
holidays.
FOR FURTHER INFORMATION CONTACT: LT Paul M. Stocklin, Jr., c/o Captain
of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington
98134, (206) 217-6232.
SUPPLEMENTARY INFORMATION:
Regulatory History
On February 23, 1999, we published a notice of proposed rulemaking
entitled Regulated Navigation Area, Eagle Harbor, Bainbridge Island,
WA, in the Federal Register (64 FR 8764). We received two letters
commenting on the proposal. No public hearing was requested, and none
was held.
[[Page 72560]]
Background and Purpose
The Wyckoff/Eagle Harbor Superfund site is located on the East Side
of Bainbridge Island, in Central Puget Sound, Washington. The site
includes a former 40-acre wood-treating facility, contaminated
sediments in adjacent Eagle Harbor, and other upland sources of
contamination to the harbor, including a former shipyard.
Part of the remediation process for this site consists of covering
the contaminated sediments in Eagle Harbor with a layer of clean
medium-to-coarse grained sand approximately one-meter (3-feet) thick.
This cap is used to isolate contaminants and limit their vertical
migration and release into the water column. The cap will also limit
the potential for marine organisms to reach the contaminated sediment.
This rule establishes a permanent regulated navigation area, which
prohibits activities such as anchoring, salvage, or dredging which
would disturb the sediment cap covering the contaminated seabed. The
regulation does not affect normal transit or navigation of the area.
The Wyckoff facility is located on the point of land that forms the
southeastern border of Eagle Harbor. The sediment cap includes
approximately 2600 feet of shoreline and extends approximately 2800
feet into the harbor. This area is seldom used as an anchorage site as
it is in relatively unprotected water near the mouth of the harbor.
Discussion of Comments and Changes
The Coast Guard received two letters commenting on the notice of
proposed rulemaking (NPRM). The following paragraphs contain a
discussion of comments received and an explanation of changes, if any,
to the proposed regulations.
Comment: One comment strongly supports the prohibition of dredging
and laying of cable, but opposes the prohibition of anchoring. The
comment offers the opinion that the purpose of the ban on anchoring is
not to preserve the integrity of the clean sediment cap, but rather to
support wealthy homeowners wishing to rid the harbor of unsightly
vessels. The comment states a concern the rule will establish precedent
leading to additional bans on anchoring to conform to the wishes of
property owners.
Response: We disagree with this comment. It has been clearly stated
that the purpose of this rule is to preserve the integrity of a clean
sediment cap placed over contaminated seabed as part of the remediation
process at a USEPA Superfund site. The dropping and setting of anchors
clearly threaten the integrity of the cap. The rule applies only to the
area defined by the boundaries of the regulated navigation area. This
area is in relatively unprotected water near the mouth of the harbor
and seldom used as an anchorage site.
Comment: The comment states the area has been commercial property
for over one hundred years and is ideally situated for the building of
docks, piles to be driven and anchors to be dropped. The comment
indicates the rule will make the area totally unusable and commercial
use of the entire harbor would be lost. The comment adds that as the
area grows, they will need more marine facilities--not less.
Response: As previously stated, the rule does not affect normal
transit or navigation of the area. The rule includes a waiver process
that will permit otherwise prohibited activity if the EPA and the
Washington State Department of Natural Resources determine the proposed
activity can be performed in a manner that ensures the integrity of the
sediment cap. The need for placing and preserving the clean sediment
cap has been well established by the USEPA and supported by the
Washington State Department of Natural Resources. The listing of the
site as a Superfund site and its suitability for future commercial
development are outside the scope of this rulemaking and will not be
addressed.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866 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.
It is not ``significant'' under the regulatory policies and procedures
of the Department of Transportation (DOT) (44 FR 11040, February 26,
1979). The Coast Guard expects the economic impact of this proposal to
be so minimal that a full Regulatory Evaluation under paragraph 10(e)
of the regulatory policies and procedures of DOT is unnecessary. The
proposed rule would not affect normal transit or navigation of the area
and the only property involved is that of the former Wyckoff facility.
The area is not a designated anchorage ground nor special anchorage
area and was seldom used as an anchorage site as it is in relatively
unprotected water immediately adjacent the harbor entrance.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612.), we
considered whether this rule would have a significant economic impact
on a substantial number of small entities. ``Small entities'' include
small businesses, not-for-profit organizations that are independently
owned and operated and are not dominant in their fields, and
governmental jurisdictions with populations less than 50,000. This rule
will affect the following entities, some of which may be small
entities: The owners or operators of vessels intending to engage in one
of the prohibited activities in the regulated area. This proposed rule
would not affect transit or navigation of the area. Rather, it would
prohibit activities that would disturb the seabed, such as anchoring,
dredging, or laying cable. The area is not a designated anchorage
ground nor special anchorage area and was seldom used as an anchorage
site as it is relatively unprotected water immediately adjacent the
harbor entrance.
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.
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
We have analyzed this rule under Executive Order 13132 and have
determined that this rule does not have implications for federalism
under that Order.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or tribal government or the private sector to incur direct costs
without the Federal Government's having first provided the funds to pay
those unfunded mandate costs. This rule will not impose an unfunded
mandate.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
[[Page 72561]]
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under E.O. 13045, Protection of Children
from Environmental Health Risks and Safety Risks. This rule is not an
economically significant rule and does not concern an environmental
risk to health or risk to safety that may disproportionately affect
children.
Environmental Analysis
The Coast Guard considered the environmental impact of this rule
and has concluded that, under figure 2-1, paragraph (34)(g), of
COMDTINST M16475.1C, this rule is categorically excluded from further
environmental documentation. A Categorical Exclusion is provided for
regulations establishing Regulated Navigation Areas. This particular
regulated navigation area is proposed for the purpose of preserving the
remediation efforts at a USEPA Superfund Site. The rule itself will not
cause nor introduce any environmental impacts and will be transparent
in all regards except for prohibiting activities which could disturb
the seabed within the established boundaries of the site.
The USEPA has determined that there will be no significant
environmental impact arising from the creation of a RNA designed to
protect the sediment cap. The actual placement of the cap in Eagle
Harbor was determined by USEPA to provide an environmental benefit to
the area by allowing organisms to colonize the clean sediments of the
cap (``The Proposed Plan for Cleanup of Eagle Harbor''--December 16,
1991). USEPA's authority to place the cap is expressed in a publicly
available document known as a ``Removal Action Memorandum'' dated June
15, 1993, and additional information is available at the Marine Safety
Office at the address under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reports 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
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 (g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. A new Sec. 165.1309 is added to read as follows:
Sec. 165.1309 Eagle Harbor, Bainbridge Island, WA.
(a) Regulated area. A regulated navigation area is established on
that portion of Eagle Harbor bounded by a line beginning at: 47 deg.
36' 56'' N, 122 deg. 30' 36'' W; thence to 47 deg. 37' 11'' N, 122 deg.
30' 36'' W; thence to 47 deg. 37' 25'' N, 122 deg. 30' 17'' W; thence
to 47 deg. 37' 24'' N, 122 deg. 30' 02'' W; thence to 47 deg. 37' 16''
N, 122 deg. 29' 55'' W; thence to 47 deg. 37' 03'' N, 122 deg. 30' 02''
W; thence returning along the shoreline to point of origin. [Datum NAD
1983].
(b) Regulations. All vessels and persons are prohibited from
anchoring, dredging, laying cable, dragging, seining, bottom fishing,
conducting salvage operations, or any other activity which could
potentially disturb the seabed in the designated area. Vessels may
otherwise transit or navigate within this area without reservation.
(c) Waiver. The Captain of the Port, Puget Sound, upon advice from
the U.S. EPA Project Manager and the Washington State Department of
Natural Resources, may, upon written request, authorize a waiver from
this section if it is determined that the proposed operation supports
USEPA remedial objectives, or can be performed in a manner that ensures
the integrity of the sediment cap. A written request must describe the
intended operation, state the need, and describe the proposed
precautionary measures. Requests should be submitted in triplicate, to
facilitate review by U.S. EPA, Coast Guard, and Washington State
Agencies. USEPA managed remedial design, remedial action, habitat
mitigation, or monitoring activities associated with the Wyckoff/Eagle
Harbor Superfund Site are excluded from the waiver requirement. USEPA
is required, however, to alert the Coast Guard in advance concerning
any of the above-mentioned activities that may, or will, take place in
the Regulated Area.
Dated: December 15, 1999.
Paul M. Blayney,
Rear Admiral, USCG 13th District Commander.
[FR Doc. 99-33581 Filed 12-27-99; 8:45 am]
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