[Federal Register Volume 87, Number 192 (Wednesday, October 5, 2022)]
[Rules and Regulations]
[Pages 60269-60271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21577]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 prohibits 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 will not affect vessels 
transiting or navigating within this waterway.

DATES: This rule is effective November 4, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0199 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
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
DHS Department of Homeland Security
EPA Environmental Protection Agency
FR Federal Register
NPRM Notice of proposed rulemaking
RNA Regulated Navigation Area
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On December 6, 2021, the United States EPA 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 will 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.
    In response, on June 8, 2022, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled ``Regulated Navigation Area; 
Environmental Protection Agency Superfund Site, Point Ruston, 
Commencement Bay, Tacoma, WA'' (87 FR 34834). There we stated why we 
issued the NPRM, and invited comments on our proposed regulatory action 
related to this RNA. During the comment period that ended August 8, 
2022, we received one comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Puget Sound 
(COTP) has determined that establishing a permanent regulation 
restricting activities such as anchoring, dragging, trawling, or other 
activities will prevent disrupting the integrity of sediment caps 
located within the Commencement Bay Nearshore/Tideflat, WA.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM published June 
8, 2022. The comment was in support of the proposed rule. There are no 
changes in the regulatory text of this rule from the proposed rule in 
the NPRM.
    This rule establishes a RNA to prohibit certain activities 
including anchoring, dragging, trawling, and other activities that 
involve disrupting the integrity of sediment caps located within the 
Commencement Bay Nearshore/Tideflat, WA. 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.

[[Page 60270]]

    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.

V. 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 caps.

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 received no comments from the Small Business 
Administration on this rulemaking. 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 V.A above, 
this rule will not have a significant economic impact on any vessel 
owner or operator.
    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. Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this 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 preemption requirements described in Executive Order 
13132.
    Also, this rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does 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.

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 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. It is 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 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.

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

[[Page 60271]]

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.

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:  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 
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.

    Dated: September 28, 2022.
M.W. Bouboulis,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2022-21577 Filed 10-4-22; 8:45 am]
BILLING CODE 9110-04-P


