[Federal Register Volume 89, Number 99 (Tuesday, May 21, 2024)]
[Proposed Rules]
[Pages 44622-44624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10742]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a temporary 
Regulated Navigation Area for certain waters of the Cuyahoga River. 
This action is necessary to provide for the safety of life on these 
navigable waters near the ``Irishtown Bend'' in Cleveland, Ohio, during 
a bank stabilization construction project from August 15, 2024, through 
November 30, 2025. This proposed rulemaking would limit vessel speeds 
near the area and prohibit vessels from being inside the Regulated 
Navigation Area 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 proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 20, 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. This notice of proposed rulemaking 
with its plain-language, 100-word-or-less proposed rule summary will be 
available in this same docket.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Cody Mayrer at Marine Safety Unit 
Cleveland's Waterways Management Division, U.S. Coast Guard; telephone 
216-937-0111, 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
Sec.  Section
U.S.C. United States Code

[[Page 44623]]

II. Background, Purpose, and Legal Basis

    On December 17, 2023, Goettle Construction 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.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within 10 feet of the construction barges 
during the scheduled construction hours of 8 a.m. through 4 p.m., 
Monday through Friday. The Coast Guard is proposing this rulemaking 
under authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The Captain of the Port Eastern Great Lakes (COTP) is proposing to 
establish a Regulated Navigation Area (RNA) from 8 a.m. through 4 p.m. 
Monday through Friday starting on August 15, 2024, with an anticipated 
completion date of November 30, 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 zone is intended to ensure the 
safety of vessels and these navigable waters during the scheduled hours 
of the construction project. 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.

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. This NPRM has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, the NPRM has not been reviewed by the Office of Management 
and Budget (OMB).
    This regulatory action determination is based on size, location, 
and duration of the proposed rule.

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 
safety zone 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 proposed 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 proposed 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 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 potential effects of 
this proposed 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

[[Page 44624]]

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 a Regulated Navigation Area 
lasting 8 hours each day, Monday through Friday 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. 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.
    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 proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed 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. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    We review all comments received, but we will only post comments 
that address the topic of the proposed 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).

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 
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, 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.Txx-xxxx to read as follows:


Sec.  165.Txx-xxx  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, 
081[deg]42'01'' W (NAD 83), from surface to bottom, during the time of 
enforcement described in paragraph (d) below.
    (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 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 Period.
    (d) Enforcement period. This section is enforceable from 8 a.m. 
through 4 p.m. every day, Monday through Friday, from August 15, 2024, 
through November 30, 2025. If the COTP determines this section need not 
be enforced during these times on a given day, he will use marine 
broadcast notices to mariners 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: May 9, 2024.
M.I. Kuperman,
Captain, U.S. Coast Guard, Captain of the Port Eastern Great Lakes.
[FR Doc. 2024-10742 Filed 5-20-24; 8:45 am]
BILLING CODE 9110-04-P