[Federal Register Volume 87, Number 7 (Tuesday, January 11, 2022)]
[Rules and Regulations]
[Pages 1354-1356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00199]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing a regulated navigation 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 regulation prohibits persons and 
vessels from activities in the RNA that could disturb or damage the 
engineered sediment cap unless authorized by the Captain of the Port 
Sector Columbia River or a designated representative.

DATES: This rule is effective February 10, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0531 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LCDR Sean Morrison, Waterways Management Division, Marine 
Safety Unit Portland, Coast Guard; telephone 503-240-9319, email <a href="/cdn-cgi/l/email-protection#d195e0e2fc829c93fc9c828481bea3a5bdb0bfb586869c91a4a2b2b6ffbcb8bd"><span class="__cf_email__" data-cfemail="3c780d0f116f717e11716f696c534e48505d52586b6b717c494f5f5b12515550">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PGM Portland Gas Manufacturing
RNA Regulated Navigation Area
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On October 19, 2020, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled ``Regulated Navigation Area; NW Natural PGM 
Site, Willamette River, Portland, OR'' (85 FR 66292). There we stated 
why we issued the NPRM, and invited comments on our proposed regulatory 
action related to this regulated navigation area (RNA). During the 
comment period that ended November 18, 2020, we received 1 comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Coast Guard is establishing a 
RNA 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.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received 1 comment on our NPRM published October 
19, 2020. The commenter expressed support in establishing this RNA to 
protect the cap on sediment in the Willamette River, noting that if the 
sediment were to increase in the Willimette River there is potential 
for flooding and other negative effects on users of the waterway. 
Accordingly, there are no changes in the regulatory text of this rule 
from the proposed rule in the NPRM.
    This rule establishes 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 prohibits activities which could disrupt or 
damage the sendiment cap on the river bed such as anchoring, dragging, 
dredging, trawling, or other related activities. The rule also 
specifies that operators who wish to engage in dredging, spudding, and 
vessel anchoring within the RNA must consult with Oregon DEQ and obtain 
prior

[[Page 1355]]

approval from the COTP to prevent exposure of buried contamination and/
or damage to the engineered sediment cap.
    Additionally, this rule allows 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 
COTP is given advance notice of those activities by Oregon DEQ.

V. Regulatory Analyses

    We developed this 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 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 RNA must 
consult with Oregon DEQ and obtain prior approval from the 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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
RNA may be small entities, for the reasons stated in section V.B above, 
this rule will not have a significant economic impact on any vessel 
owner or operator.
    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 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.
    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.

C. Collection of Information

    This rule will 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 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 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.

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

F. Environment

    We have analyzed this 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 determined 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 rule involves the 
creation of a RNA that prohibits certain maritime activities to protect 
an engineered sediment cap. It is 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 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.

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.

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 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:  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. 
00170.1, Revision No. 01.2.


[[Page 1356]]



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 Oregon DEQ 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 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 
COTP is given advance notice of those activities by Oregon DEQ.
    (c) Contact information. If you observe violations of the 
regulations in this section, you may notify the COTP by email, at <a href="/cdn-cgi/l/email-protection#db9feae8f6889699f696888e8bb4a9afb7bab5bf8c8c969baea8b8bcf5b6b2b7"><span class="__cf_email__" data-cfemail="efabdedcc2bca2adc2a2bcbabf809d9b838e818bb8b8a2af9a9c8c88c1828683">[email protected]</span></a>.

    Dated: November 24, 2021.
M.W. Bouboulis,
RADM, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.
[FR Doc. 2022-00199 Filed 1-10-22; 8:45 am]
BILLING CODE 9110-04-P


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