[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Proposed Rules]
[Pages 66292-66294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22277]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0531]
RIN 1625-AA11


Regulated Navigation Area; NW Natural PGM Site, Willamette River, 
Portland, OR

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a regulated 
naviagation area (RNA) at the NW Natural PGM Site on the Willamette 
River in Portland, OR. This action is necessary to preserve the 
integrity of an engineered sediment cap as part of an Oregon Department 
of Environmental Quality (DEQ) required remedial action. This proposed 
rulemaking would prohibit activities in the RNA that could disturb or 
damage the engineered sediment cap. We invite your comments on this 
proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before November 18, 2020.

ADDRESSES: You may submit comments identified by docket number USCG-
2020-0531 using the Federal eRulemaking 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 LCDR Dixon Whitley, Waterways 
Management Division, Marine Safety Unit Portland, Coast Guard; 
telephone 503-240-9319, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PGM Portland Gas Manufacturing

[[Page 66293]]

Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The Coast Guard is proposing to establish a regulated navigation 
area to protect the engineered sediment cap located at the NW Natural 
PGM Site on the Willamette River in Portland, OR. This sediment cap is 
part of an Oregon Department of Environmental Quality (DEQ) required 
remedial action. The engineered sediment cap is designed to be 
compatible with normal vessel operations, but could be damaged by other 
maritime activities including anchoring, dragging, dredging, grounding 
of vessels, deployment of barge spuds, etc. Such damage could disrupt 
the function or impact the effectiveness of the cap to contain the 
underlying contaminated sediment and soil in these areas.
    The purpose of this rulemaking is to prevent disruption of the 
sediment cap 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. 70034 
(previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    The proposed rule would create a RNA adjacent to the NW Natural PGM 
Site on the Willamette River in Portland, OR encompassing all waters 
above the sediment cap. The RNA would prohibit activities which could 
disrupt or damage the sendiment cap on the riverbed such as anchoring, 
dragging, dredging, trawling, or other related activities. The proposed 
rule would also specify that operators who wish to engage in dredging, 
spudding, and vessel anchoring within the regulated navigation area 
must consult with the Oregon Department of Environmental Quality and 
obtain prior approval from the Coast Guard Captain of the Port Sector 
Columbia River (COTP) to prevent exposure of buried contamination and/
or damage to the remedial cap. For convenience, the contact information 
for the Orgeon Department of Environmental Quality would be included in 
the regulations.
    Additionally, this proposed rule would allow vessels or persons 
engaged in activities associated with remediation efforts in the NW 
Natural PGM Site to engage in dredging and related activities, provided 
that the Coast Guard Captain of the Port Sector Columbia River (COTP) 
is given advance notice of those activities by the Oregon Department of 
Envrionmental Quality. We also propose to include the COTP's contact 
information for reporting suspected violations of the regulations in 
proposed paragraph (b).

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 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. Additionally, operators who wish to 
engage in dredging, spudding, and vessel anchoring within the regulated 
navigation area must consult with the Oregon Department of 
Environmental Quality and obtain prior approval from the Coast Guard 
Captain of the Port Sector Columbia River (COTP) to prevent exposure of 
buried contamination and/or damage to the remedial 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 
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 
RNA 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 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 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.
    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

[[Page 66294]]

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, 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 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 the 
creation of a RNA that prohibits certain maritime activities to protect 
an engineered sediment cap. 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, call or email 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 https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and 
submissions in response to this document, see DHS's eRulemaking System 
of Records notice (85 FR 14226, March 11, 2020).
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at https://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 is 
proposing 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. 0170.1.

0
2. Add Sec.  165.1343 to read as follows:


Sec.  165.1343   Regulated navigation area; NW Natural PGM Site, 
Willamette River, Portland, OR.

    (a) Location. The following area is a regulated navigation area 
(RNA): All navigable waters of the Willamette River adjacent to the NW 
Natural Portland Gas Manufacturing (PGM) site, encompassed by a line 
connecting the following points beginning at 45[deg]31'33.8'' N, 
122[deg]40'11.6'' W; thence to 45[deg]31'33.9'' N, 122[deg]40'11.2'' W; 
thence to 45[deg]31'32.7'' N, 122[deg]40'10.7'' W; thence to 
45[deg]31'32.9'' N, 122[deg]40'09.4'' W; thence to 45[deg]31'32.2'' N, 
122[deg]40'08.8'' W; thence to 45[deg]31'32.2'' N, 122[deg]40'07.9'' W; 
thence to 45[deg]31'31.4'' N, 122[deg]40'07.6'' W; thence to 
45[deg]31'30.9'' N, 122[deg]40'10.7'' W; and along the shoreline back 
to the beginning point. These coordinates are based on North American 
Datum 83 (NAD 83). Geographically this location starts on the west bank 
of the Willamette River at approximately river mile 12.2, 100 yards 
south of the Steel Bridge.
    (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) Sediment disturbance activities including dredging, spudding, 
and vessel anchoring require advance consultation with the Oregon 
Department of Environmental Quality and obtain prior approval from the 
Coast Guard Captain of the Port Sector Columbia River (COTP) to prevent 
exposure of buried contamination and/or damage to the remedial cap. 
Contact the Oregon Department of Environmental Quality at 503-229-5245, 
or alternatively, call 811 prior to any sediment disturbance activity. 
Any work within 10 feet of the seawall is prohibited unless there is 
advance consultation and approval by the City of Portland, DEQ and the 
Coast Guard Captain of the Port Sector Columbia River (COTP). All 
vessels and persons are prohibited from anchoring, dredging, laying 
cable, dragging, seining, bottom fishing, conducting salvage 
operations, or any other activity which could potentially disturb the 
riverbed in the designated area. Vessels may otherwise transit or 
navigate within this area.
    (2) The regulations described in paragraph (b)(1) of this section 
do not apply to vessels or persons engaged in activities associated 
with remediation efforts in the NW Natural PGM Site, provided that the 
Coast Guard Captain of the Port Sector Columbia River (COTP) is given 
advance notice of those activities by the Oregon Department of 
Envrionmental Quality.
    (c) Contact information. If you observe violations of the 
regulations in this section, you may notify the COTP by email, at [email protected].

    Dated: October 1, 2020.
A.J. Vogt,
Commander, RADM, U.S. Coast Guard, Thirteenth Coast Guard District.
[FR Doc. 2020-22277 Filed 10-16-20; 8:45 am]
BILLING CODE 9110-04-P