2011-19320. Regulated Navigation Area; Pacific Sound Resources and Lockheed Shipyard EPA Superfund Cleanup Sites, Elliott Bay, Seattle, WA

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish a permanent regulated navigation area (RNA) on a portion of Elliott Bay in Seattle, Washington. The RNA would 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 would 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:

Comments and related material must be received by the Coast Guard on or before October 31, 2011. Requests for public meetings must be received by the Coast Guard on or before September 15, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-1145 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: 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.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail LTJG Ian Hanna, Waterways Management Division, Sector Puget Sound, Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

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.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-1145), 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 (via 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 via http://www.regulations.gov, 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 e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2010-1145” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2; 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.

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, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010-1145” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. 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. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one on or before September 15, 2011 using one of the four 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.

Background and Purpose

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 established shipbuilding operations in 1959 and the facility 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 Proposed Rule

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.

Regulatory Analyses

We developed this proposed 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 proposed 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.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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. 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.

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.

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 so that they can better evaluate its effects on them and participate in the rulemaking. 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 LTJG Ian Hanna, Waterways Management, Sector Puget Sound, Coast Guard; telephone [phone], e-mail [e-mail]. 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.

Collection of Information

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

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.

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.

Protection of Children

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might 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.

Energy Effects

We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES.

This proposed rule involves no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. As a proposal to establish a regulated navigation area, this rule meets the criteria outlined in paragraph (34)(g). 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

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

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, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.1336 to read as follows:

§ 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°35′02.7″ N 122°22′23.00″ W; thence north to 47°35′26.00″ N 122°22′23.00″ W; thence east to 47°35′26.00″ N 122°21′52.50″ W; thence south to 47°35′10.80″ N 122°21′52.50″ W; thence southwest to a point on the shoreline at 47°35′05.9″ N 122°21′58.00″ W. [Datum: NAD 1983].

(2) All waters inside an area beginning at 47°34′52.16″ N 122°21′27.11″ W; thence to 47°34′53.46″ N 122°21′30.42″ W; thence to 47°34′37.92″ N 122°21′30.51″ W; thence to 47°34′37.92″ N 122°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 rulemaking 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.

(1) 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 they determine 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: July 6, 2011.

G.T. Blore,

Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.