[Federal Register Volume 90, Number 111 (Wednesday, June 11, 2025)] [Rules and Regulations] [Pages 24508-24511] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2025-10608] ======================================================================= ----------------------------------------------------------------------- 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; request for comments. ----------------------------------------------------------------------- SUMMARY: The Coast Guard is issuing an interim rule that will extend enforcement of an existing temporary 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, during a bank stabilization construction project from July 11, 2025, with an anticipated completion date of all waterside work on November 30, 2025. This rulemaking continues to 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 from July 11, 2025 through November 30, 2025. Comments and related material must be received by the Coast Guard July 11, 2025. 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, 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 (NPRM) on May 21, 2024, with a 30-day comment period, at 89 FR 44622. That proposed rule proposed that we would enforce the RNA through November 30, 2025. During the NPRM comment 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. Due to the significant nature of this project, and in the interest of continued collaboration with stakeholders, the Coast Guard published an interim rule with request for comment on November 25, 2024.\1\ That interim rule provided for an additional 30-day comment period. The Coast Guard published the Final Rule on February 25, 2025.\2\ The result of the analysis of the comments and collaboration with stakeholders was to maintain the original engineering scope of the project with modified project dates and timing to accommodate stakeholder concerns related to vessel and facility scheduling. As a result, the Coast Guard shortened the duration of the RNA to last only until July 11, 2025. We have since learned that the project will not be completed during the shortened duration of the RNA, by July 11. Therefore, we are relying on the original NPRM proposed enforcement dates to extend this RNA until November 30, 2025. --------------------------------------------------------------------------- \1\ 89 FR 92804. \2\ 90 FR 10594. --------------------------------------------------------------------------- On March 19, 2025, the Coast Guard held a construction schedule update meeting with the Goettle Construction representative and concerned maritime stakeholders. At the meeting, Goettle Construction indicated that due to various construction issues, the anticipated end date of the waterside work, and thus, the RNA, would need to be extended to November 30, 2025. As a result, this interim rule will provide a comment period on extending the RNA effective period end date as an opportunity for the public to notify us of any new concerns. Based on construction delays in the renovation project, the Coast Guard is effectively extending the dates for the RNA to correspond to the new completion dates for the given work. The Coast Guard is issuing this rulemaking under authority in 46 U.S.C. 70011 and 70034. The authority to [[Page 24509]] 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 the Rule As noted above, the RNA final rule was issued on February 25, 2025. That final rule established an RNA starting on March 27, 2025, with an anticipated completion date of July 11, 2025. The RNA covered 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. This IFR effectively extends the duration of the RNA until November 30, 2025 to ensure the safety of vessels and these navigable waters during the following revised scheduled hours of the construction project:Effective July 11, 2025, through November 30, 2025 the RNA will be enforced from 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 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. If the project is completed before November 30 and there is no longer a safety concern in the area, we will notify the public through local notice to mariners that we are no longer enforcing the RNA. V. Regulatory Analyses We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses 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. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (OMB) has not designated this rule a ``significant regulatory action,'' under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this RNA. The RNA is only enforced 48 hours each week, from 7 a.m. on Tuesdays through 7 a.m. on Thursdays until November 30, 2025. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM Marine Channel 16 about the regulated area, and the rule would allow vessels to transit around the RNA. 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.A. above, this 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 rule would not have a significant economic impact on a substantial number of small entities. 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 proposed 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 [[Page 24510]] 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 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 July 11, 2025, through November 30, 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. A record of environmental consideration is available in the docket. 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 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. 01.4. 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, 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 regulations in this paragraph (c) 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 [[Page 24511]] 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 periods. (d) Enforcement periods. This section is enforceable during the following periods: July 11, 2025 through November 30, 2025 from 7 a.m. each Tuesday through 7 a.m. each Thursday. (e) 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: June 4, 2025. J.P. Hickey, Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District. [FR Doc. 2025-10608 Filed 6-10-25; 8:45 am] BILLING CODE 9110-04-P