E9-30935. Regulated Navigation Areas; Port of Portland Terminal 4, Willamette River, Portland, OR

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

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.

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: [phone].

(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 [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 8½ 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 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 [phone], e-mail [e-mail]. 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:

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 § 165.1326 to read as follows:

§ 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°36′01.861″ N/122°46″20.995″ W thence to 45°36′01.455″ N/122°46′20.887″ W thence to 45°36′00.993″ N/122°46′20.714″ W thence to 45°36′00.725″ N/122°46′20.923″ W thence to 45°36′00.731″ N/122°46′21.262″ W thence to 45°36′00.712″ N/122°46′21.823″ W thence to 45°36′01.230″ N/122°46′22.048″ W thence to 45°36′01.651″ N/122°46′22.168″ W thence to 45°36′01.684″ N/122°46′22.372″ W thence to 45°36′01.873″ N/122°46′22.303″ W thence to 45°36′02.065″ N/122°46′21.799″ W thence to 45°36′01.989″ N/122°46′21.574″ W thence to 45°36′01.675″ N/122°46′21.483″ W thence to 45°36′01.795″ N/122°46′21.442″ W thence to 45°36′01.861″ N/122°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°36′10.634″ N/122°46′39.056″ W thence to 45°36′10.269″ N/122°46′37.140″ W thence to 45°36′10.027″ N/122°46′6.050″ W thence to 45°36′09.722″ N/122°46′34.181″ W thence to 45°36′09.425″ N/122°46′33.118″ W thence to 45°36′08.960″ N/122°46′32.150″ W thence to 45°36′08.653″ N/122°46′31.681″ W thence to 45°36′08.191″ N/122°46′31.341″ W thence to 45°36′07.886″ N/122°46′31.269″ W thence to 45°36′07.517″ N/122°46′31.038″ W thence to 45°36′07.235″ N/122°46′31.066″ W thence to 45°36′07.040″ N/122°46′30.941″ W thence to 45°36′06.697″ N/122°46′30.987″ W thence to 45°36′06.509″ N/122°46′31.251″ W thence to 45°36′06.201″ N/122°46′31.517″ W thence to 45°36′06.081″ N/122°46′31.812″ W thence to 45°36′06.550″ N/122°46′32.124″ W thence to 45°36′06.970″ N/122°46′31.895″ W thence to 45°36′07.172″ N/122°46′31.868″ W thence to 45°36′07.883″ N/122°46′32.316″ W thence to 45°36′08.370″ N/122°46′32.927″ W thence to 45°36′08.775″ N/122°46′33.888″ W thence to 45°36′09.121″ N/122°46′35.337″ W thence to 45°36′09.230″ N/122°46′36.166″ W thence to 45°36′09.442″ N/122°46′37.759″ W thence to 45°36′09.865″ N/122°46′39.511″ W thence to 45°36′10.421″ N/122°46′39.469″ W thence to 45°36′10.634″ N/122°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.