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[Federal Register Volume 89, Number 227 (Monday, November 25, 2024)]
[Rules and Regulations]
[Pages 92804-92808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27557]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0393]
RIN 1625-AA11

Regulated Navigation Area; Cuyahoga River, Cleveland, OH

AGENCY: Coast Guard, DHS.

ACTION: Interim rule and request for comments.

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SUMMARY: The Coast Guard is issuing an Interim Final Rule establishing 
a Regulated Navigation Area (RNA) for certain waters of the Cuyahoga 
River in Cleveland, Ohio. This action is necessary to provide for the 
safety of life on these navigable waters near the ``Irishtown Bend'' in 
Cleveland, Ohio,

[[Page 92805]]

during a bank stabilization construction project from December 2, 2024, 
with an anticipated completion date of all waterside work on July 11, 
2025. This rulemaking would limit vessel speeds near the area and 
prohibit vessels from being inside the RNA during construction hours 
unless authorized by the Captain of the Port Sector Eastern Great Lakes 
or a designated representative. We invite your comments on this 
rulemaking.

DATES: This interim rule is effective on December 2, 2024. Comments and 
related material must be received by the Coast Guard December 26, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2024-0393 using the Federal Decision Making 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: For information about this document, 
call or email MST1 Cody Mayrer at Marine Safety Unit Cleveland's 
Waterways Management Division, U.S. Coast Guard; telephone 216-937-
0111, email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Discussion of Comments and Changes
IV. Discussion of the Rule
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment
VI. Public Participation and Request for Comments

I. Abbreviations

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
RNA Regulated Navigation Area
Sec.  Section
U.S.C. United States Code

II. Basis and Purpose, and Regulatory History

    On December 17, 2023, Goettle Construction company notified the 
Coast Guard that they will be conducting waterside construction 
associated with a bank stabilization project on the Cuyahoga River in 
Cleveland, Ohio from August 15, 2024, through November 30, 2025. 
Construction is intended to shore-up and replace approximately 2,400 
linear feet of corrugated steel bulkhead located on the western (left 
descending) bank of the Cuyahoga River between the Detroit-Superior 
Bridge and the Columbus Road Bridge. The Captain of the Port Sector 
Eastern Great Lakes (COTP) has determined that potential hazards 
associated with the equipment used to complete this project would be a 
safety concern for any craft intending to navigate near the project 
area during construction hours. Furthermore, additional safety measures 
are necessary to keep workers on the construction barges safe while 
completing the construction project.
    There will be impacts to the Cuyahoga River in Cleveland during 
this stabilization project. However, this work is necessary because if 
the bank of the river is allowed to slide into the river, then it could 
potentially close the river for an estimated 12-18 months for all 
vessel traffic.
    The Coast Guard published a notice of proposed rulemaking on May 
21, 2024, with a 30-day comment period, 89 FR 44622. During this 
period, 10 comments were received. After a review of all comments, 
several meetings were held with project stakeholders to discuss 
concerns over impacts to commercial vessel traffic in the affected area 
of the navigable waterway. The result of the analysis of the comments 
and collaboration with stakeholders was to maintain the original 
engineering scope of the project, however, with modified project dates 
and timing to accommodate stakeholder concerns related to vessel and 
facility scheduling. The Coast Guard is satisfied with these 
modifications to the project schedule.
    Due to the significant nature of this project, and in the interest 
of continued collaboration with stakeholders, this rulemaking provides 
for an additional 30-day comment period. Also, under 5 U.S.C. 
553(d)(3), the Coast Guard finds that good cause exists for making this 
rule effective less than 30 days after publication in the Federal 
Register. Delaying the effective date of this rule would be 
impracticable because of the need to protect the public from hazards 
associated with the project.
    The Coast Guard is proposing this rulemaking under authority in 46 
U.S.C. 70011 and 70034. The authority to promulgate regulations under 
this section is delegated to the Commandant of the Coast Guard under 
Department of Homeland Security (DHS) Delegation No. 00170.1(II)(70), 
Revision No. 01.4.

III. Discussion of Comments

    During the NPRM comment period, 10 comments were received from 
industry representatives potentially affected by the construction plan. 
Their shared, consistent concern was the restriction of commercial 
vessel traffic during the daily construction periods resulting in 
impacts to the transportation of various commodities to and from 
waterfront processing facilities. These comments have been addressed 
directly with the stakeholders during several in-person meetings. As a 
result of these comments and meetings, we adjusted the dates and times 
for the RNA in this document.

IV. Discussion of the Rule

    This rule establishes a RNA starting on December 2, 2024, with an 
anticipated completion date of July 11, 2025. The RNA would cover all 
navigable waters within 10 feet of construction barges in the Cuyahoga 
River located on the western bank (left descending bank) of the 
Cuyahoga River between the Detroit-Superior Bridge and the Columbus 
Road Bridge in Cleveland, Ohio. The duration of the Regulated 
Navigation Area is intended to ensure the safety of vessels and these 
navigable waters during the following scheduled hours of the 
construction project:

 December 2, 2024, through January 31, 2025
    [cir] 7 a.m. each Tuesday through 7 a.m. each Thursday
 February 3, 2025, through February 28, 2025
    [cir] No transit restrictions required due to lack of anticipated 
vessel traffic
 March 3, 2025, through March 28, 2025
    [cir] 8 a.m. though 4 p.m. each Monday through Friday
 March 31, 2025, through July 11, 2025
    [cir] 7 a.m. each Tuesday through 7 a.m. each Thursday

    No vessel or craft would be permitted to be operated within 10 feet 
of the construction barges without obtaining permission from the COTP 
or a designated representative. The regulatory text we are proposing 
appears at the end of this document.
    The economic impact of this rule is reduced to reasonable minimums 
as a result of consideration of comments and collaboration with 
affected stakeholders.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses

[[Page 92806]]

based on these statutes or Executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Two additional Executive orders were recently published to promote 
the goals of Executive Order 13563: Executive Order 13609 (Promoting 
International Regulatory Cooperation) and Executive Order 13610 
(Identifying and Reducing Regulatory Burdens). Executive Order 13609 
targets international regulatory cooperation to reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements. Executive 
Order 13610 aims to modernize the regulatory systems and to reduce 
unjustified regulatory burdens and costs on the public.
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866, as amended by Executive Order 14094 (Modernizing 
Regulatory Review). A regulatory analysis (RA) follows.

B. 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.
    While some owners or operators of vessels intending to transit the 
regulated area may be small entities, for the reasons stated in section 
V above, this interim rule would not have a significant economic impact 
on any vessel owner or operator. The Coast Guard certifies under 5 
U.S.C. 605(b) that this interim rule would not have a significant 
economic impact on a substantial number of small entities.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this interim 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.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we offer to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. 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.
    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).

D. 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.

E. Federalism

    A rule has implications for federalism under Executive Order 13132 
(Federalism) if it has a substantial direct effect on 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 Executive Order 13132 and 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132. Our analysis follows.
    It is well settled that States may not regulate in categories 
reserved for regulation by the Coast Guard. It is also well settled 
that all of the categories covered in 46 U.S.C. chapter 700 (Ports and 
Waterways Safety), as well as the reporting of casualties and any other 
category in which Congress intended the Coast Guard to be the primary 
source of a vessel's or facilitiy's obligations, are within the fields 
generally foreclosed from regulation by the States. See, e.g., United 
States v. Locke, 529 U.S. 89 (2000) (finding that the States are 
foreclosed from regulating tanker vessels), see also Ray v. Atlantic 
Richfield Co., 435 U.S. 151, 157 (1978) (State regulation is preempted 
where ``the scheme of Federal regulation may be so pervasive as to make 
reasonable the inference that Congress left no room for the States to 
supplement it [or where] the Act of Congress may touch a field in which 
the Federal interest is so dominant that the Federal system will be 
assumed to preclude enforcement of State laws on the same subject.'' 
(citations omitted)).
    This Interim Final Rule will establish a Regulated Navigation Area 
(RNA) for certain waters of the Cuyahoga River in Cleveland, Ohio. In 
enacting 46 U.S.C. 70011 (Waterfront safety) Congress articulated a 
need for the Coast Guard to protect the navigable waters of the United 
States. We have analyzed this interim rule for an RNA under Executive 
Order 13132 and have determined that it is consistent with the 
fundamental federalism principles and preemption requirements described 
in Executive Order 13132. The Coast Guard recognizes that the States 
may prescribe higher safety standards pursuant to 46 U.S.C. 70011(c), 
but such standards may not, conflict with Federal statutes and 
regulations. Ray v. Atlantic Richfield Co., at 158. Therefore this rule 
is consistent with the fundamental federalism principles and preemption 
requirements described in Executive Order 13132.
    While it is well settled that States may not regulate in categories 
in which Congress intended the Coast Guard to be the sole source of a 
vessel's obligations, the Coast Guard recognizes the key role that 
State and local governments may have in making regulatory 
determinations. Additionally, for rules with federalism implications 
and preemptive effect, Executive Order 13132 specifically directs 
agencies to consult with State and local governments during the 
rulemaking process. If you believe this rule has implications for 
federalism under Executive Order 13132, please call or email the person 
listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

F. Unfunded Mandates

    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

[[Page 92807]]

more in any one year. Although this rule will not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

G. 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).

H. 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.

I. 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 will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175 (Consultation and Coordination with Indian Tribal Governments), 
because it will 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.

K. 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.

L. Technical Standards

    The National Technology Transfer and Advancement Act, codified as a 
note to 15 U.S.C. 272, directs agencies to use voluntary consensus 
standards in their regulatory activities unless the agency provides 
Congress, through OMB, 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.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management 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 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 rule involves a Regulated Navigation Area 
during specific periods each day from December 2, 2024, through July 
11, 2025, that would prohibit vessels from operating within 10 feet of 
the construction barges. 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. Paragraph L60a 
pertains to Regulated Navigation Areas. This rule involves Regulations 
establishing, disestablishing, or changing Regulated Navigation Areas.

VI. Public Participation and Request for Comments

    The Coast Guard views public participation as essential to 
effective rulemaking and will consider all comments and material 
received on this interim rule 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 interim rule, indicate the 
specific section of this document to which each comment applies, and 
provide a reason for each suggestion or recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2024-0393 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this interim rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
interim rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. We review all comments received, but we will only 
post comments that address the topic of the interim rule. We may choose 
not to post off-topic, inappropriate, or duplicate comments that we 
receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).
    Public meeting. We are not planning to hold a public meeting but 
will consider doing so if we determine from public comments that a 
meeting would be helpful. We would issue a separate Federal Register 
notice to announce the date, time, and location of such a meeting.

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 is 
amending 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, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T24-0393 to read as follows:

Sec.  165.T24-0393  Regulated navigation area; Irishtown Bend 
Construction, Cuyahoga River, Cleveland, OH.

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): All navigable waters of the Cuyahoga River between the Detroit-
Superior Bridge in position 41[deg]29'37'' N, 081[deg]42'13'' W (NAD 
83) and the Columbus Road Bridge in position 41[deg]29'17'' N,

[[Page 92808]]

081[deg]42'01'' W (NAD 83), from surface to bottom, during the time of 
enforcement described in paragraph (d) of this section.
    (b) Definition. As used in this section, ``on-scene 
representative'' of the Captain of the Port Eastern Great Lakes (COTP) 
is any Coast Guard commissioned, warrant or petty officer who has been 
designated by the COTP to act on the COTP's behalf. The on-scene 
representative may be on a Coast Guard vessel, other designated craft, 
or on shore and communicating with vessels via VHF-FM radio or 
loudhailer.
    (c) 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) A vessel transiting through the RNA must make a direct passage. 
No vessel may stop, moor, anchor or loiter within the RNA at any time 
unless it is engaged or intending to engage in construction work 
discussed in the RNA or are able to maintain a safe distance from the 
construction barges. All movement within the RNA is subject to a 
``Slow-No Wake'' speed limit. No vessel may produce a wake or attain 
speeds greater than 5 knots unless a higher minimum speed is necessary 
to maintain bare steerageway.
    (2) The operator of any vessel transiting in the RNA must comply 
with all lawful directions given to them by the Captain of the Port 
Eastern Great Lakes (COTP) or the COTP's on-scene representative.
    (3) The inland navigation rules in 33 CFR chapter I, subchapter E 
remain in effect within the RNA and must be followed at all times.
    (4) No vessel may navigate within 10 feet of the construction 
barges during the Enforcement Periods.
    (d) Enforcement periods. (a) This section is enforceable during the 
following periods:
    (1) December 2, 2024 through January 31, 2025; 7:00 a.m. each 
Tuesday through 7:00 a.m. each Thursday.
    (2) February 3, 2025 through February 28, 2025; No transit 
restrictions required due to lack of anticipated vessel traffic.
    (3) March 3, 2025 through March 28, 2025; 8:00 a.m. though 4:00 
p.m. each Monday through Friday.
    (4) March 31, 2025 through Jul 11, 2025; 7:00 a.m. each Tuesday 
through 7:00 a.m. each Thursday.
    (b) If the COTP determines this section need not be enforced during 
these times on a given day, marine broadcast notices to mariners will 
be used to announce the specific periods when this section will not be 
subject to enforcement. For information on radio stations broadcasting 
BNMs, see 33 CFR 72.01-25 and check the latest Local Notice to Mariners 
(LNM) for Coast Guard District 9 on https://www.navcen.uscg.gov.

    Dated: November 20, 2024.
J.P. Hickey,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2024-27557 Filed 11-22-24; 8:45 am]
BILLING CODE 9110-04-P
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