[Federal Register Volume 87, Number 110 (Wednesday, June 8, 2022)]
[Proposed Rules]
[Pages 34834-34837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12282]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0199]
RIN 1625-AA11


Regulated Navigation Area; Environmental Protection Agency 
Superfund Site, Point Ruston, Commencement Bay, Tacoma, WA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a permanent 
regulated navigation area (RNA) for all navigable waters within the 
area of lines drawn from Dune Park downward to the Point Ruston 
Historic Ferry dock on Commencement Bay, WA. This RNA is necessary to 
preserve the integrity of protective sediment caps placed in multiple 
areas within this waterway as part of the remediation process at the 
Commencement Bay, Nearshore/Tideflats Environmental Protection Agency 
(EPA) Superfund Cleanup site. This RNA would prohibit activities which 
would disturb the seabed, such as anchoring, dragging, trawling, 
spudding, or other activities that involve disrupting the integrity of 
the sediment cap, unless authorized by the Captain of the Port (COTP) 
Puget Sound or their Designated Representative. The RNA would not 
affect the transit or navigation within this waterway. We invite your 
comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before August 8, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2022-0199 using the Federal Decision Making Portal at https://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 Mr. Rob Nakama, Sector Puget Sound 
Waterways Management Division, U.S. Coast Guard; telephone 206-217-
6089, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

[[Page 34835]]

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

    On December 6, 2021, the United States Environmental Protection 
Agency Region 10 notified the Coast Guard that it requests the 
establishment of an RNA or ``No Anchor Zone'' for commercial vehicles 
within the Operable Unit 6 (OU6) Asarco sediment cap in the 
Commencement Bay Nearshore/Tideflat (CB-NT) Superfund site. This RNA 
would prohibit activities that could disrupt the integrity of the 
engineered sediment caps that have been placed within the OU6 Asarco 
sediment cap. These activities include vessel grounding, anchoring, 
dragging, trawling, spudding or other such activities that would 
disturb the integrity of the sediment caps.
    The purpose of this rulemaking is to prevent disruption of the 
sediment caps which may result in hazardous conditions and harm to the 
marine environment. As such, this RNA is necessary to help ensure the 
sediment cap is protected and will do so by prohibiting maritime 
activities that could disturb or damage it.
    The Coast Guard is proposing this rulemaking under authority in 46 
U.S.C. 70011 and 70034. The Secretary of the Department of Homeland 
Security (DHS) delegated these statutory authorities to the Coast Guard 
through DHS Delegation No. 00170.1(70), Revision No. 01.2. Section 46 
U.S.C. 70011 generally authorizes the Coast Guard to take such action 
as is necessary to protect the navigable waters and the resources 
therein from harm resulting from vessel or structure damage, 
destruction, or loss. Section 70034 authorizes the Coast Guard to issue 
regulations that are necessary to implement 46 U.S.C. Chapter 700.

III. Discussion of Proposed Rule

    The Coast Guard is proposing to establish a permanent regulation 
restricting activities such as anchoring, dragging, trawling, or other 
activities that involve disrupting the integrity of sediment caps 
located within the Commencement Bay Nearshore/Tideflat, WA. Activities 
common in the proposed regulated areas include tugboat and log-rafting 
activities, tugboat moorage, removal and launching of boats for repair 
and other maintenance activities. The thick-layer cap areas were 
designed to be compatible with the activities described above that are 
associated with a working waterfront. The material used for the cap was 
chosen to be able to contain underlying sediments without altering the 
main activities of the working waterways. No vessel or person would be 
permitted to perform the aforementioned activities without obtaining 
permission from the Captain of the Port, Puget Sound (COTP) or a 
designated representative.
    The RNA would include all waters within Dune Park downward to the 
Point Ruston Historic Ferry dock on Commencement Bay, WA, encompassed 
by a line connecting the following points beginning at 47[deg]18'12.0'' 
N, 122[deg]30'26.0'' W onshore, thence 240 feet to position 
47[deg]18'13.0'' N, 122[deg]30'22.0'' W offshore, thence 2,900 feet to 
position 47[deg]17'52.0'' N, 122[deg]29'53.0'' W offshore, thence 500 
feet to position 47[deg]17'49.0'' N, 122[deg]29'59.0'' W onshore. These 
coordinates are based on World Geodetic System (WGS 84).
    The prohibition for anchoring, dragging, trawling, or other 
activities that involve disrupting the integrity of sediment caps would 
not apply to vessels or persons engaged in activities associated with 
remediation efforts in the Commencement Bay Nearshore/Tideflat (CB-NT) 
Superfund sites, provided that the COTP is given advance notice of 
those activities by the EPA.Vessels may otherwise transit or navigate 
within this area without reservation.

IV. 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. 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).
    This regulatory action determination is based on the fact that the 
RNA is limited in size and will not limit vessels from transiting or 
using the waters covered, except for specified activities that may 
damage the engineered sediment cap.

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 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 
RNA may be small entities, for the reasons stated in section IV.A 
above, this rule will 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 proposed 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 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 
call or email 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 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

[[Page 34836]]

preemption requirements described in Executive Order 13132.
    Also, this proposed rule does not have tribal implications under 
Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments) because 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 call or email 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, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 proposed rule 
involves a permanent regulated navigation area for all navigable waters 
within the area of lines drawn from Dune Park downward to the Point 
Ruston Historic Ferry dock on Commencement Bay, WA. This rule prohibits 
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 other participants in the EPA 
superfund cleanup site. 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. 1. A preliminary 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble. 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 call or email 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.

A. Submitting Comments

    We encourage you to submit comments through the Federal Decision 
Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0199 in the search box and click 
``Search.'' Next, look for this document in the Search Results column, 
and click on it. Then click on the Comment option. If you cannot submit 
your material by using https://www.regulations.gov, call or email the 
person in the FOR FURTHER INFORMATION CONTACT section of this proposed 
rule for alternate instructions.

B. Viewing Material in Docket

    To view documents mentioned in this proposed rule as being 
available in the docket, find the docket as described in the previous 
paragraph, and then select ``Supporting & Related Material'' in the 
Document Type column. Public comments will also be placed in our online 
docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all 
comments received, but we will only post comments that address the 
topic of the proposed rule. We may choose not to post off-topic, 
inappropriate, or duplicate comments that we receive.

C. Personal Information

    We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have 
provided. For more about privacy and submissions to the docket in 
response to this document, see DHS's eRulemaking System of Records 
notice (85 FR 14226, March 11, 2020).

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:  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. 
00170.1, Revision No. 01.2.

0
2. Add Sec.  165.1344 to read as follows:


Sec.  165.1344   Regulated Navigation Area; Commencement Bay Nearshore/
Tideflat Superfund Site, Commencement Bay, Tacoma, WA.

    (a) Regulated Areas. The following area is a regulated navigation 
area (RNA): All waters within Dune Park downward to the Point Ruston 
Historic Ferry dock on Commencement Bay, WA, encompassed by a line 
connecting the following points beginning at 47[deg]18'12.0'' N, 
122[deg]30'26.0'' W onshore, thence 240 feet to position 
47[deg]18'13.0'' N, 122[deg]30'22.0'' W offshore, thence 2,900 feet to 
position 47[deg]17'52.0'' N, 122[deg]29'53.0'' W offshore, thence 500 
feet to position 47[deg]17'49.0'' N, 122[deg]29'59.0'' W onshore. These 
coordinates are based on World Geodetic System (WGS 84).
    (b) Regulations. In addition to the general RNA regulations in 
Sec.  165.13, the following regulations apply to the RNA described in 
paragraph (a) of this section.
    (1) Prohibited activities include those 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 other participants in the EPA superfund cleanup site. Vessels may

[[Page 34837]]

otherwise transit or navigate within this area without reservation.
    (2) The prohibition described in this section does not apply to 
vessels or persons engaged in activities associated with remediation 
efforts in the Middle Waterway superfund sites, provided that the 
Captain of the Port (COTP) Puget Sound is given advance notice of those 
activities by the EPA.

M.W. Bouboulis,
Rear Admiral, U.S. Coast Guard, Commander, 13th U.S. Coast Guard 
District.
[FR Doc. 2022-12282 Filed 6-7-22; 8:45 am]
BILLING CODE 9110-04-P


