
[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 SectorPugetSoundWWM@uscg.mil.

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]
 BILLING CODE 9110-04-P


