[Federal Register Volume 75, Number 75 (Tuesday, April 20, 2010)]
[Rules and Regulations]
[Pages 20523-20525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9018]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing two Regulated Navigation Areas 
(RNA) at the Port of Portland Terminal 4 on the Willamette River in

[[Page 20524]]

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: This rule is effective May 20, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2009-0370 and are available online by going to 
http://www.regulations.gov, inserting USCG-2009-0370 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at the 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, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 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 the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On December 30, 2009, we published a notice of proposed rulemaking 
(NPRM) entitled ``Regulated Navigation Areas; Port of Portland Terminal 
4, Willamette River, Portland, OR'' in the Federal Register (74 FR 
69047). We received one comment on the proposed rule. There were no 
requests for a public meeting and none was held.

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 marine 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 Comments and Changes

    The one comment received questioned the use, in the Background and 
Purpose section of the NPRM, of the term ``port'' rather than 
``marine'' to describe the activities that may take place in the area 
where the sediment caps are located. In light of the potential 
confusion about what activities are being discussed, the term ``port'' 
was replaced with ``marine'' in the ``Background and Purpose'' section 
of this final rule.

Regulatory Analyses

    We developed this 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 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 whether this 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 rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule could 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.
    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.

Collection of Information

    This rule calls 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 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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

[[Page 20525]]

Taking of Private Property

    This rule will 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 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 rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

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

Environment

    We have analyzed this 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 concluded 
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 is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule involves the establishment of a regulated 
navigation area. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

0
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:  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.


0
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' 36.050'' 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' 1.812'' 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: April 2, 2010.
G.T. Blore,
Rear Admiral, U.S. Coast Guard
Commander, Thirteenth Coast Guard District.
[FR Doc. 2010-9018 Filed 4-19-10; 8:45 am]
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