[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Proposed Rules]
[Pages 69046-69049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30935]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0370]
RIN 1625-AA11


Regulated Navigation Areas; Port of Portland Terminal 4, 
Willamette River, Portland, OR

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes the establishment of two Regulated 
Navigation Areas (RNA) at the Port of Portland Terminal 4 on the 
Willamette River in Portland, Oregon. The RNAs are necessary to 
preserve the integrity of engineered sediment caps placed within Slip 3 
and Wheeler Bay at the Portland Harbor Superfund Site as part of a 
removal action at that site. The RNAs will do so by prohibiting 
activities that could disturb or damage the engineered sediment caps in 
that area.

DATES: Comments and related material must be received by the Coast 
Guard on or before January 29, 2010.

[[Page 69047]]


ADDRESSES: You may submit comments identified by docket number USCG-
2009-0370 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (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 MST1 Jaime Sayers, Waterways Management, USCG 
Sector Portland; telephone 503-240-9319, e-mail 
[email protected]. If you have questions on viewing or submitting 
material to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

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-2009-0370), 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, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0370'' in the Docket ID box, press Enter, 
and 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 8[frac12] 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, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0370 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID 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 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

    As part of a removal action at the Portland Harbor Superfund Site 
in 2008, engineered sediment caps were placed within Slip 3 and Wheeler 
Bay at the Port of Portland Terminal 4 Facility in order to contain 
underlying contaminated sediment and shoreline soil. The Port of 
Portland Terminal 4 Facility is located between River Miles 4.1 and 4.5 
on the Willamette River.
    The engineered sediment caps are designed to be compatible with 
normal port operations, but could be damaged by other maritime 
activities including anchoring, dragging, dredging, or trawling. Such 
damage could disrupt the function or affect the integrity of the caps 
to contain the underlying contaminated sediment and shoreline soil in 
these areas. As such, the RNAs are necessary to help ensure the 
engineered sediment caps are protected and will do so by prohibiting 
certain maritime activities that could disturb or damage them.

Discussion of Proposed Rule

    The proposed rule would create RNAs covering portions of Slip 3 and 
Wheeler Bay at the Port of Portland Terminal 4 where engineered 
sediment caps are in place. Within the RNAs, vessels will be prohibited 
from anchoring, dragging, dredging, or trawling. The prohibitions are 
necessary to help ensure the engineered sediment caps are protected 
from damage.

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. The Coast Guard has made 
this determination based on the fact that the RNAs cover a relatively 
small area and that area can still be used for most maritime 
activities.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered

[[Page 69048]]

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 proposed rule would affect the following 
entities, some of which might be small entities: The owners or 
operators of vessels operating in the areas covered by the RNAs. The 
RNAs would not have a significant economic impact on a substantial 
number of small entities, however, because the RNAs cover a relatively 
small area and that area can still be used for most maritime 
activities.
    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 MST1 Jaime Sayers, Waterways 
Management, USCG Sector Portland; telephone 503-240-9319, e-mail 
[email protected]. 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 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 effect 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

    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.

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 which 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 establishing a regulated navigation area. 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, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR Part 165 as follows:

[[Page 69049]]

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. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  165.1326 to read as follows:


Sec.  165.1326  Regulated Navigation Areas; Port of Portland Terminal 
4, Willamette River, Portland, OR

    (a) Regulated navigation areas. Each of the following areas is a 
regulated navigation area:
    (1) All waters of the Willamette River in the head of the Port of 
Portland's Terminal 4 Slip 3, encompassed by a line commencing at 
45[deg]36'01.861'' N/122[deg]46''20.995'' W thence to 
45[deg]36'01.455'' N/122[deg]46'20.887'' W thence to 45[deg]36'00.993'' 
N/122[deg]46'20.714'' W thence to 45[deg]36'00.725'' N/
122[deg]46'20.923'' W thence to 45[deg]36'00.731'' N/
122[deg]46'21.262'' W thence to 45[deg]36'00.712'' N/
122[deg]46'21.823'' W thence to 45[deg]36'01.230'' N/
122[deg]46'22.048'' W thence to 45[deg]36'01.651'' N/
122[deg]46'22.168'' W thence to 45[deg]36'01.684'' N/
122[deg]46'22.372'' W thence to 45[deg]36'01.873'' N/
122[deg]46'22.303'' W thence to 45[deg]36'02.065'' N/
122[deg]46'21.799'' W thence to 45[deg]36'01.989'' N/
122[deg]46'21.574'' W thence to 45[deg]36'01.675'' N/
122[deg]46'21.483'' W thence to 45[deg]36'01.795'' N/
122[deg]46'21.442'' W thence to 45[deg]36'01.861'' N/
122[deg]46'20.995'' W.
    (2) All waters of the Willamette River in Wheeler Bay between Slip 
1 and Slip 3 in the Port of Portland's Terminal 4, encompassed by a 
line commencing at 45[deg]36'10.634'' N/122[deg]46'39.056'' W thence to 
45[deg]36'10.269'' N/122[deg]46'37.140'' W thence to 45[deg]36'10.027'' 
N/122[deg]46'6.050'' W thence to 45[deg]36'09.722'' N/
122[deg]46'34.181'' W thence to 45[deg]36'09.425'' N/
122[deg]46'33.118'' W thence to 45[deg]36'08.960'' N/
122[deg]46'32.150'' W thence to 45[deg]36'08.653'' N/
122[deg]46'31.681'' W thence to 45[deg]36'08.191'' N/
122[deg]46'31.341'' W thence to 45[deg]36'07.886'' N/
122[deg]46'31.269'' W thence to 45[deg]36'07.517'' N/
122[deg]46'31.038'' W thence to 45[deg]36'07.235'' N/
122[deg]46'31.066'' W thence to 45[deg]36'07.040'' N/
122[deg]46'30.941'' W thence to 45[deg]36'06.697'' N/
122[deg]46'30.987'' W thence to 45[deg]36'06.509'' N/
122[deg]46'31.251'' W thence to 45[deg]36'06.201'' N/
122[deg]46'31.517'' W thence to 45[deg]36'06.081'' N/
122[deg]46'31.812'' W thence to 45[deg]36'06.550'' N/
122[deg]46'32.124'' W thence to 45[deg]36'06.970'' N/
122[deg]46'31.895'' W thence to 45[deg]36'07.172'' N/
122[deg]46'31.868'' W thence to 45[deg]36'07.883'' N/
122[deg]46'32.316'' W thence to 45[deg]36'08.370'' N/
122[deg]46'32.927'' W thence to 45[deg]36'08.775'' N/
122[deg]46'33.888'' W thence to 45[deg]36'09.121'' N/
122[deg]46'35.337'' W thence to 45[deg]36'09.230'' N/
122[deg]46'36.166'' W thence to 45[deg]36'09.442'' N/
122[deg]46'37.759'' W thence to 45[deg]36'09.865'' N/
122[deg]46'39.511'' W thence to 45[deg]36'10.421'' N/
122[deg]46'39.469'' W thence to 45[deg]36'10.634'' N/
122[deg]46'39.056'' W.
    (b) Regulations. All vessels are prohibited from anchoring, 
dragging, dredging, or trawling in the regulated navigation areas 
established in paragraph (a) of this section.

    Dated: December 11, 2009.
G.T. Blore,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. E9-30935 Filed 12-29-09; 8:45 am]
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