Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations 5987 

minimize transiting delays caused by 

the temporary deviation. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. 

This deviation from the operating 

regulations is authorized under 33 CFR 

117.35. 

Dated: January 12, 2009. 

Waverly W. Gregory, Jr., 

Chief, Bridge Administration Branch, Fifth 

Coast Guard District. 

[FR Doc. E9–2339 Filed 2–3–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–0112] 

RIN 1625–AA11 

‘‘Gasco’’ Regulated Navigation Area, 

Willamette River, Portland, OR 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is 

establishing a Regulated Navigation 

Area on the Willamette River, Portland, 

Oregon Captain of the Port Zone. This 

action is necessary to preserve the 

integrity of the clean engineered pilot 

cap placed over a portion of the NW 

Natural ‘‘Gasco’’ site (Site) remediation 

area as part of the Environmental 

Protection Agency (EPA) Superfund 

clean up action. This rule is needed to 

prohibit activities that would cause 

disturbance of pilot cap material which 

was placed to isolate and contain 

underlying contaminated sediment. 

DATES: This rule is effective March 6, 

2009. 

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–2008–0112 and are 

available online by going to http:// 

www.regulations.gov, selecting the 

Advanced Docket Search option on the 

right side of the screen, inserting USCG– 

2008–0112 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. This 

material is also available for inspection 

or copying at two locations: The Docket 

Management Facility (M–30), U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, D.C. 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays and U.S. Coast 

Guard Sector Portland, 6767 North 

Basin Ave., Portland, OR 97217 between 

8 a.m. and 2 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call 

MST1 Jaime Sayers, U.S. Coast Guard 

Sector Portland, Waterways 

Management Division, telephone 503– 

240–9300. 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 June 2, 2008, we published a 

notice of proposed rulemaking (NPRM) 

entitled ‘‘ ‘Gasco’ Regulated Navigation 

Area, Willamette River, Portland, OR’’ 

in the Federal Register (73 FR 31397). 

We received no letters commenting on 

the proposed rule. No public meeting 

was requested, and none was held. 

Background and Purpose 

On April 28, 2004, NW Natural 

entered into an Administrative Order 

with the U.S. Environmental Protection 

Agency to perform a number of actions 

in association with removing a tar body 

at the surface of the near shore sediment 

adjacent to the Site. The Site is located 

in the Portland Harbor Superfund site at 

approximately river mile 6.5 on the 

Willamette River. As part of these 

actions, a pilot cap was designed and 

constructed to cap over a portion of the 

removal area. The purpose of the pilot 

cap is to place a barrier over a portion 

of the removal area and monitor the 

performance of the pilot cap until the 

Portland Harbor Superfund Site 

Remedial Investigation/Feasibility 

Study is completed and a final remedy 

is evaluated for the Site. The 

information collected during the interim 

will be used to help evaluate 

contamination loading through the pilot 

cap due to residual contamination in 

sediments and/or potential ground 

water migration through the pilot cap, 

and to help determine whether capping 

might be an effective remedy for future 

remediation at the Site. Accordingly, a 

regulated navigation area is needed to 

limit disturbances to the pilot cap 

reducing a potential hazardous release 

into the Willamette River. 

Discussion of Comments and Changes 

No comments were received on this 

rule during the comment period such 

that no changes have been made to the 

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. 

We expect the economic impact of 

this rule to be so minimal that a full 

Regulatory Evaluation is unnecessary. 

The effect of this regulation will not be 

significant based on the fact there will 

be minimal, if any, effect on the 

navigable waterway around the 

regulated area due to the regulated 

navigation area’s proximity to the shore. 

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 will affect the following 

entities, some of which may be small 

entities: The owners or operators of 

vessels intending to transit or anchor in 

a portion of the Willamette River. This 

rule will not have a significant 

economic impact on a substantial 

number of small entities because the 

regulated navigation area is limited in 

size leaving ample room for vessels to 

navigate around the area. Vessels 

engaged in commerce with the existing 

refueling pipeline located within the 

site should not be affected by this 

regulation in those activities but are 

advised to minimize potential impacts 

such as anchoring, wake scouring, and 

dragging in the vicinity of the pilot cap. 

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 

5988 Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations 

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 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. 

Taking of Private Property 

This rule will 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 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. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 5100.1 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 that this action is one 

of a category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. Therefore, this rule is 

categorically excluded, under section 

2.B.2. Figure 2–1, paragraph (34)(g), of 

the Instruction and neither an 

environmental assessment nor an 

environmental impact statement is 

required. This rule involves the 

establishing, disestablishing , or 

changing Regulated Navigation Areas, 

and security or safety zones. 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. 

■ 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 

■ 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, 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 § 165.1322 to read as follows: 

§ 165.1322 Regulated Navigation Area: 

Willamette River Portland, Oregon Captain 

of the Port Zone. 

(a) Location. The following is a 

regulated navigation area (RNA): All 

waters of the Willamette River 

encompassed by a line commencing at 

45°34′.47′′ N, 122°45′28′′ W along the 

shoreline to 45°34′47′′ N, 122°45′30′′ W 

thence to 45° 34′47′′ N, 122°45′30′′ W 

thence to 45°34′48′′ N, 122°45′30′′ W 

thence to 45°34′48′′ N, 122°45′30′′ W 

thence to 45°34′48′′ N, 122°45′28′′ W 

thence to 45°34′47′′ N, 122°45′28′′ W 

and back to the point of origin. All 

coordinates reference 1983 North 

American Datum (NAD 83). 

(b) Regulations. (1) Motoring, 

anchoring, dragging, dredging, or 

trawling are prohibited in the regulated 

area. 

(2) All vessels transiting or accessing 

the regulated area shall do so at a no 

Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations 5989 

wake speed or at the minimum speed 

necessary to maintain steerage. 

Dated: December 2, 2008. 

J.P. Currier, 

Rear Admiral, U.S. Coast Guard, Commander, 

Thirteenth Coast Guard District. 

[FR Doc. E9–2310 Filed 2–3–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–0121] 

RIN 1625–AA11 

‘‘McCormick & Baxter’’ Regulated 

Navigation Area, Willamette River, 

Portland, OR 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is 

establishing a Regulated Navigation 

Area on the Willamette River, Portland, 

Oregon. This action is necessary to 

preserve the integrity of the engineered 

pilot cap placed over contaminated 

sediments as part of an Environmental 

Protection Agency (EPA) Superfund 

cleanup action at the McCormick & 

Baxter Creosoting Company Superfund 

Site. This rule is needed to prohibit 

activities that would cause disturbance 

of pilot cap material, which was placed 

to isolate and contain underlying 

contaminated sediment. 

DATES: This rule is effective March 6, 

2009. 

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–2008–0121 and are 

available online by going to http:// 

www.regulations.gov, selecting the 

Advanced Docket Search option on the 

right side of the screen, inserting USCG– 

2008–0121 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. This 

material is also available for inspection 

or copying at two locations: 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 and U.S. Coast 

Guard Sector Portland, 6767 North 

Basin Ave., Portland, OR 97217, 

between 8 a.m. and 2 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call 

MST1 Jaime Sayers, U.S. Coast Guard 

Sector Portland, Waterways 

Management Branch, telephone 503– 

240–9300. 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 June 3, 2008, we published a 

notice of proposed rulemaking (NPRM) 

entitled ‘‘McCormick and Baxter 

Regulated Navigation Area, Willamette 

River, Portland, OR’’ in the Federal 

Register (73 FR 31652). We received no 

letters commenting on the proposed 

rule. No public meeting was requested, 

and none was held. 

Background and Purpose 

The McCormick & Baxter Creosoting 

Company operated between 1944 and 

1991, treating wood products with 

creosote, pentachlorophenol and 

inorganic (arsenic, copper, chromium, 

and zinc) preservative solutions. 

Historically, process wastewaters were 

discharged directly to the Willamette 

River, and other process wastes were 

dumped in several areas of the Site. 

Significant concentrations of woodtreating chemicals have been found in 

soil and groundwater at the site and in 

river sediments adjacent to the Site. The 

EPA listed the Site on the National 

Priorities List (NPL) in June 1994 based 

on information collected by DEQ 

between September 1990 and September 

1992. The EPA also designated the DEQ 

as the lead agency for implementing the 

selected remedy while funding for 

remedial design and construction was 

primarily provided by EPA. The DEQ 

implemented a number of interim 

removal measures between 1992 and 

1994, including plant demolition, 

sludge and soil removals, and extraction 

of creosote from the groundwater 

aquifers. The Record of Decision (ROD) 

was issued by WPA and DEQ in April 

1996 after considering public comments 

on the Proposed Cleanup Plan. The 

remedy addressed contaminated ground 

water, soil and sediment. A component 

of the groundwater remedy, initiated in 

1994, consisted of an automated 

creosote extraction and groundwater 

treatment system. However, due to poor 

product recovery and high operating 

costs, the automated system was 

discontinued in late 2000. Creosote is 

currently being recovered by passive 

and manual methods. Approximately 

6,200 gallons have been recovered since 

1991. A contingency groundwater 

remedy was implemented in the 

summer of 2003, with the construction 

of a combination steel sheet pile and 

soil Bentonite slurry wall surrounding 

18 acres. The purpose of the barrier wall 

is to prevent migration of creosote to the 

Willamette River. Implementation of the 

soil remedy began in March 1999 with 

the removal of 33,000 tons of highly 

contaminated soil and debris. The soil 

remedy was completed in September 

2005 following installation of a 

combination impermeable/earthen 

cap—the impermeable portion covering 

the area within the subsurface barrier 

wall. The sediment remedy was 

implemented in 2004 and primarily 

consisted of an armored sand cap placed 

over 23 acres of contaminated sediment. 

Construction occurred during the 

summers of 2004 and 2005. Sediment 

cap construction performed in 2005 

followed construction work performed 

by the City of Portland to stabilize two 

high pressure sewer lines located within 

a one-acre portion of the sediment cap. 

In addition to the sand layer, an oil 

adsorptive material known as 

organophyllic clay was used in two 

creosote seep areas. To protect the cap 

from erosion, the sand and 

organophyllic clay were armored with a 

combination of rock and articulated 

concrete blocks. Erosion forces 

evaluated in designing the cap armoring 

layer included hydraulic-induced 

stresses due to river currents associated 

with a 500-year flood, vessel-induced 

propeller velocities from a tractor tug 

and various sized recreational boats, 

wind waves associated with a 100-year 

wind storm and vessel wakes associated 

with various boats including a 100-ft 

fireboat traveling at 14 knots. These 

forces were evaluated for river level 

variations due to tidal action and flood 

currents. Additionally, numerical 

modeling was used to analyze wave 

transformation and capping of the 

riverbank with two feet of topsoil, turf 

reinforcement matting and herbaceous 

vegetation. Revegitation of the capped 

riverbank with native trees and shrubs 

took place in February 2006 after the 

soil had been stabilized with the native 

grasses planted in November 2004. The 

DEQ has requested the issuance of this 

RNA in order to prohibit activities that 

may damage the engineered sediment 

cap at the Site. Although the sediment 

cap is designed to withstand a variety of 

anticipated erosional forces, the cap is 

susceptible to damage, such as from 

propeller wash, deployment of barge 

spuds, deployment and dragging of 

anchors, and grounding of large vessels. 

If the engineered sediment cap were to 

be damaged by marine activities, the 

contaminated sediments which underlie