Regulated Navigation Area; St. Louis River/Duluth-Superior Harbor, Duluth, MN

<RULE> DEPARTMENT OF HOMELAND SECURITY <SUBAGY>Coast Guard</SUBAGY> <CFR>33 CFR Part 165</CFR> <DEPDOC>[Docket No. USCG-2023-0368]</DEPDOC> <RIN>RIN 1625-AA11</RIN> <SUBJECT>Regulated Navigation Area; St. Louis River/Duluth-Superior Harbor, Duluth, MN</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Coast Guard, DHS. <HD SOURCE="HED">ACTION:</HD> Interim rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Homeland Security, United States Coast Guard, is establishing a Regulated Navigation Area for certain waters of the Duluth-Superior Harbor and the St. Louis River in Duluth, MN. This action is necessary to prevent disruption of an engineered sediment remediation project within one of the Great Lakes designated Areas of Concern (AOC); the St. Louis River. This interim rulemaking prohibits anchoring, spudding, dredging, dragging, or any other activity which could potentially disturb the riverbed in the designated area unless authorized by the District Commander or the Captain of the Port. We invite your comments on this interim rulemaking. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim rule is effective April 8, 2024. Comments and related material must be received by the Coast Guard on or before May 6, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments identified by docket number USCG-2023-0368 using the Federal Decision Making Portal at <E T="03">https://www.regulations.gov.</E> See the “Public Participation and Request for Comments” portion of the <E T="02">SUPPLEMENTARY INFORMATION</E> section for further instructions on submitting comments. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For information about this document call or email LT Joseph McGinnis, Coast Guard; telephone 218-725-3818, email <E T="03">MSUDuluthWWM@uscg.mil.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents for Preamble</HD> <EXTRACT> <FP SOURCE="FP-2">I. Abbreviations</FP> <FP SOURCE="FP-2">II. Basis and Purpose, and Regulatory History</FP> <FP SOURCE="FP-2">III. Background</FP> <FP SOURCE="FP-2">IV. Discussion of Comments and Changes</FP> <FP SOURCE="FP-2">V. Discussion of the Rule</FP> <FP SOURCE="FP-2">VI. Regulatory Analyses</FP> <FP SOURCE="FP1-2">A. Regulatory Planning and Review</FP> <FP SOURCE="FP1-2">B. Small Entities</FP> <FP SOURCE="FP1-2">C. Assistance for Small Entities</FP> <FP SOURCE="FP1-2">D. Collection of Information</FP> <FP SOURCE="FP1-2">E. Federalism</FP> <FP SOURCE="FP1-2">F. Unfunded Mandates</FP> <FP SOURCE="FP1-2">G. Taking of Private Property</FP> <FP SOURCE="FP1-2">H. Civil Justice Reform</FP> <FP SOURCE="FP1-2">I. Protection of Children</FP> <FP SOURCE="FP1-2">J. Indian Tribal Governments</FP> <FP SOURCE="FP1-2">K. Energy Effects</FP> <FP SOURCE="FP1-2">L. Technical Standards</FP> <FP SOURCE="FP1-2">M. Environment</FP> <FP SOURCE="FP-2">VII. Public Participation and Request for Comments</FP> </EXTRACT> <HD SOURCE="HD1">I. Abbreviations</HD> <EXTRACT> <FP SOURCE="FP-1">AOC Area of Concern</FP> <FP SOURCE="FP-1">COTP Captain of the Port</FP> <FP SOURCE="FP-1">CFR Code of Federal Regulations</FP> <FP SOURCE="FP-1">DHS Department of Homeland Security</FP> <FP SOURCE="FP-1">FR Federal Register</FP> <FP SOURCE="FP-1">NPRM Notice of proposed rulemaking</FP> <FP SOURCE="FP-1">OMB Office of Management and Budget</FP> <FP SOURCE="FP-1">RNA Regulated Navigation Area</FP> <FP SOURCE="FP-1">§ Section </FP> <FP SOURCE="FP-1">U.S.C. United States Code</FP> </EXTRACT> <HD SOURCE="HD1">II. Basis and Purpose, and Background</HD> The purpose of this rulemaking is to ensure the protection of the remedies, human health, and the environment in the Duluth Harbor. The Coast Guard is publishing this interim rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). In 2019, the Minnesota Pollution Control Agency (MPCA) began discussions with the Coast Guard and other stakeholders to explore establishing Regulated Navigation Areas (RNAs) for some of the project sites within the St. Louis River Area of Concern (AOC) to prevent disrupting engineered remedies from consequential human caused disturbance at specific remedial action sites that contain known contaminated sediment. The Federal Great Lakes Restoration Initiative funded these remedial actions under the Great Lakes Legacy Act provisions in order to mitigate risks to human and environmental health by reducing exposure to contaminated riverbed sediments. To prevent future exposure to the contained contaminants, the engineered remedies must be protected from disturbance. In 2022, the MPCA notified the Coast Guard of the sites and areas that would be appropriate for an RNA. The Captain of the Port (COTP) of Duluth has determined that protection of these remedies is appropriate and necessary to protect human and environmental health. A Notice of Proposed Rulemaking (NPRM) was published on August 23, 2023. 88 FR 57378. The Coast Guard distributed the NPRM through the Harbor Technical Advisory Council and sent emails to local stakeholders. Seven responses were received during the comment period. These comments, our responses to them, and the changes that have been made to the proposed rule are discussed in further detail below. <HD SOURCE="HD1">III. Discussion of Comments and Changes to the Proposed Rule</HD> The Coast Guard received seven comments in response to the NPRM. One comment was in full support of the proposed rule, while the other six brought forward a number of stakeholder concerns. The primary request shared by most commenters is that the Coast Guard should withdraw the proposed rule and engage with affected parties before moving forward. The Coast Guard acknowledges these concerns but will not be withdrawing this rulemaking. Our priority in this matter is the protection of the engineered remedies that are a part of the St. Louis River AOC sediment remediation project and withdrawing this rule would leave them vulnerable to disturbance. In recognition of these concerns, the Coast Guard will continue to accept public comments on this RNA. We encourage stakeholders to provide the Coast Guard with more information on the impact of the RNA on operations in the Duluth Superior Harbor. One commenter recommended that the Coast Guard remove propeller scouring from the list of prohibited activities within the RNA. We agree with this commenter and have removed propeller scouring from the list of prohibited activities to mitigate the impact of the RNA on port operations. The engineered remedies of the sediment cap are designed to protect against disturbances caused by normal propeller scouring. One commenter argued that this rule is premature because there are continuing remediation efforts in Minnesota and Wisconsin waters that may also require protection. We disagree with this comment. The Coast Guard's priority in this matter is preventing any disturbance of the remediation project that protects the environment from contaminated sediments. Our mission of environmental protection is best served by the immediate protection of these remedies. The protection of other remediation projects can be addressed in a separate rulemaking or by revising the geographical boundary of this rule. Another commenter alleged that this rule is vague and not implementable because it fails to specify what entities must be consulted in order for the COTP to grant a waiver. We disagree with this comment. The COTP has the authority to grant a waiver and may consult with private, state, and Federal entities to assist in making a decision. This language gives the COTP sufficient time to review and act in accordance with the Ports and Waterways Safety Act. Some commenters requested that the Cost Guard modify the waiver process for this RNA to include a timeline for a decision and an appeal process. The Coast Guard declines to impose a COTP response deadline. However, we have incorporated into this regulation a requirement for these waivers to be submitted 120 days prior to operation in order to give sufficient time for adequate review. The appeals process is addressed in 33 CFR 160.7. One commenter recommended the addition of language that would exclude recreational anglers from the limitations imposed by the RNA. The Coast Guard disagrees with this recommendation. Anchoring in the RNA is an environmental risk, regardless of the type of vessel. Fishing without anchoring or disturbance of any bottom substrate is authorized within the RNA. One commenter asked that we provide a specific exemption for cruise ship traffic. The Coast Guard declines to exempt cruise ship traffic from the requirements of the RNA as doing so would jeopardize the engineered remedies, and therefore place the environmental health of the harbor at risk. That being said, it is our intention to mitigate the impact of this RNA on the growing cruise ship sector and we encourage stakeholders to provide more information during the comment period for this interim rule. One commenter took issue with the way the proposed rule described the relationship between Indian tribes and the U.S. Government. We made the recommended changes to address this in section VI.J. below. The notable changes between this interim rule and the proposed rule is the exclusion of propeller scouring from the list of prohibited activities, a waiver submission timeline, and the addition of an exemption for emergency circumstances out of the control of the vessel and operator. <HD SOURCE="HD1">V. Discussion of the Rule</HD> Coast Guard District Nine is establishing the RNA in order to prevent any potential disruption to the remediated St. Louis River AOC sites. The RNA will cover these six remediation sites: Minnesota Slip, Duluth, MN; Slip 3, Duluth, MN; Slip C, Duluth, MN; Azcon/Duluth Seaway P ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 38k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━