[Federal Register Volume 84, Number 126 (Monday, July 1, 2019)]
[Proposed Rules]
[Pages 31273-31277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13932]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0118]
RIN 1625-AA11


Regulated Navigation Area; Monongahela, Allegheny, and Ohio 
Rivers, Pittsburgh, PA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a regulated navigation 
area for certain waters of the Monongahela, Allegheny, and Ohio Rivers 
near Pittsburgh, Pennsylvania. This action is necessary to provide for 
the safety of persons, vessels, and the marine environment on these 
navigable waters due to the high volume of vessels navigating the area. 
This proposed rulemaking would prohibit persons and vessels from 
loitering, anchoring, stopping, mooring, remaining, or drifting more 
than 100 feet from any river bank in the regulated navigation area 
unless authorized in order to reduce vessel congestion and provide for 
safe passage of transiting vessels in the center of the rivers. It 
would also prohibit persons and vessels from loitering, anchoring, 
stopping, mooring, remaining, or drifting in any manner that impedes 
the safe passage of another vessel to any launching ramp, marine, or 
fleeting area unless authorized. We invite your comments on this 
proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before July 31, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0118 using the Federal eRulemaking 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: If you have questions about this 
proposed rulemaking, call or email LT Shawn Simeral, Marine Safety Unit 
Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email 
Shawn.C.Simeral@uscg.mil.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Marine Safety Unit Pittsburgh

[[Page 31274]]

DHS Department of Homeland Security
FR Federal Register
MSU Marine Safety Unit
NPRM Notice of proposed rulemaking
Sec.  Section
USACE U.S. Army Corps of Engineers
U.S.C. United States Code
RNA Regulated Navigation Area

II. Background, Purpose, and Legal Basis

    The Coast Guard proposes to establish a Regulated Navigation Area 
(RNA) for certain waters of the Monongahela, Allegheny, and Ohio Rivers 
near Pittsburgh, Pennsylvania. The confluence of these three rivers is 
a high traffic area for both commercial and recreational vessels. It is 
also a destination for recreational vessels to anchor and loiter during 
the summer months due to the proximity of multiple entertainment 
venues. The Coast Guard is concerned about the potential for collisions 
between commercial and recreational vessels and the impact of vessel 
congestion on maritime commerce in this area. A Map/Chartlet depicting 
the area, as well as images depicting the severe vessel congestion in 
this area, are included where indicated in the docket under ADDRESSES.

A. The Point of Pittsburgh

    The Point of Pittsburgh is located at the confluence of the 
Allegheny, Monongahela, and Ohio Rivers, and is surrounded by the city 
of Pittsburgh, PA. The city of Pittsburgh is located in the Emsworth 
pool, often referred to as the ``Pitt Pool,'' which forms the 24-mile 
pool around the city.\1\ The Emsworth pool is the water area from 
upriver of the Emsworth Locks and Dam on the Ohio River, to Lock 2 on 
the Allegheny River and to the Braddock Locks and Dam on the 
Monongahela River. In 2016, the U.S. Army Corps of Engineers (USACE) 
ranked the Port of Pittsburgh fourth among inland waterway ports and 
31st among ports in the United States for tonnage traffic. The area 
around the Point of Pittsburgh also includes eight highway bridges. 
These bridges create navigation limitations for tows and passenger 
vessels due to piers and overhead clearance.
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    \1\ ``Pool'' is a term used to describe the area between 
navigation dams of the rivers.
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    In addition, the Port of Pittsburgh contains 27 marinas and has 21 
public boat landings, and the Pitt Pool contains 12 marinas and three 
public boat launches. Over the past three years, an average of 7,860 
recreational boats transited through the three locks of the Pitt Pool 
annually. The Point of Pittsburgh area contains multiple entertainment 
venues near the riverfront that include: A National Football League 
stadium, Major League Baseball stadium, casino, United Soccer League 
stadium, amphitheater, state park, science center, museums, convention 
center, and various memorials, monuments, trails, and restaurants.

B. The Marine Community Concerns

    A wide variety of both commercial and recreational traffic transit 
the rivers around the Point, including: Barges and tow boats in transit 
up bound on the Allegheny and Monongahela rivers, and down bound on the 
Ohio River, ferries to the North Shore of the Ohio River for events, 
passenger vessel cruises, and recreational craft. Due to the heavy 
concentration of entertainment activities, the Point of Pittsburgh is a 
destination for recreational craft to moor, anchor, or drift in the 
area. Recreational vessels will often raft off to one another from the 
shore or from an anchored vessel, creating congestion and hazardous 
conditions for less maneuverable vessels transiting the river current.
    During a Passenger Vessel Association Rivers Region Meeting in 
November of 2016, participants notified Coast Guard Marine Safety Unit 
(MSU) Pittsburgh of navigation and safety issues involving vessel 
congestion near the Point of Pittsburgh during the summer months. As a 
result, MSU Pittsburgh formed a Congested Waterways Committee that 
meets monthly to investigate the congestion issue and discuss concerns 
regarding use of the waterway. The committee includes: Tow boat 
operators, commercial passenger vessel operators, port executives, safe 
boating council members, industry representatives, and members from 
local recreational boat associations, along with representatives of the 
Coast Guard Auxiliary, USACE, and city and state law enforcement 
officials.
    MSU Pittsburgh learned that during summer months, especially on 
weekends, large numbers of recreational vessels anchor or drift in the 
vicinity of the Point of Pittsburgh, which created an unsafe navigation 
situation for the larger commercial vessels utilizing the waterway. 
Some of the participants discussed several near misses between 
commercial and recreational vessels, but currently there is no standard 
definition of a near miss as it pertains to this issue, nor has it been 
tracked. MSU Pittsburgh received comments about the dangers of 
recreational vessels anchoring or drifting near the sailing line,\2\ 
and conversely, about the dangers of commercial vessels that seem to 
expect vessels to give way as a matter of course. The local ferries 
also expressed concerns regarding vessels blocking the approaches to 
their loading areas.
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    \2\ The phrase ``sailing line'' is defined as the middle of the 
river as marked on the USACE river charts.
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    Several commercial vessel representatives were frustrated that 
recreational vessel users are not all required to have knowledge of 
navigation rules prior to operating a vessel.\3\ They also stated that 
during times of congestion, commercial vessels will often halt transit 
of vessels or limit passenger vessel cruise areas rather than proceed 
into potentially unsafe transit conditions. These events have a 
negative impact on their businesses. Industry representatives discussed 
their vessel size, stopping limitations, limited maneuverability, and 
proximity to bridges as reasons they consider transit during congestion 
as unsafe. They stated that recreational vessels often maneuver very 
close to their vessels or cross in front as they transit. Everyone 
agreed that the three rivers of Pittsburgh should be able to be used by 
both commercial and recreational vessels, and that the safety of the 
waterways users should be the top priority.
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    \3\ Pennsylvania law states any person born on or after January 
1, 1982, shall not operate, on the waters of this Commonwealth, a 
motorboat without first obtaining a certificate of boating safety 
education.
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C. Special Local Regulations

    During the summer of 2018, MSU Pittsburgh was notified of two 
outdoor concerts at Heinz Field. Due to the proximity of the stadium to 
the Ohio River, large concentrations of recreational vessels were 
anticipated throughout concert weekends. To mitigate the navigational 
impact, MSU Pittsburgh permitted these concerts as marine events and 
established temporary Special Local Regulations to maintain a safe and 
clear navigation area during the concert weekends.
    On April 17, 2018, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled Special Local Regulation; Monongahela (MM 
0.22), Allegheny (MM 0.8), and Ohio Rivers (0.8), Pittsburgh, PA (83 FR 
16808) for the Luke Bryan concert. There, we stated why we issued the 
NPRM, and invited comments on our proposed regulatory action related to 
the concert. During the comment period that ended on May 2, 2018, we 
received no comments. On May 18, 2018, the Coast Guard published a 
temporary final rule

[[Page 31275]]

establishing the Special Local Regulation (83 FR 23218).
    On April 19, 2018, the Coast Guard published an NPRM titled Special 
Local Regulation; Monongahela, Allegheny, and Ohio Rivers, Pittsburgh 
PA (83 FR 17333) for the Kenny Chesney concert. There, we stated why we 
issued the NPRM, and invited comments on our proposed regulatory action 
related to the concert. During the comment period that ended May 4, 
2018, we received no comments. On May 18, 2018, the Coast Guard 
published a temporary final rule establishing the Special Local 
Regulation (83 FR 23224).
    Both temporary Special Local Regulations prohibited persons and 
vessels from loitering, anchoring, stopping, or drifting more than 100 
feet from any riverbank or act in a manner that impedes the passage of 
another vessel to any launching ramp, marina, or fleeting area. In 
advance of the concert weekends, MSU Pittsburgh conducted outreach/
education. MSU Pittsburgh provided flyers to the three locks and dams 
of the Pitt Pool to be given to boaters entering the pool throughout 
the concert weekends. Coast Guard and Coast Guard Auxiliary patrols 
also provided flyers to boaters in the Pitt Pool during the concerts. 
MSU Pittsburgh personnel participated in news media interviews with two 
local TV stations and one local newspaper. According to the USACE, 529 
recreational and 133 commercial vessels transited through the locks of 
the Pitt Pool throughout the concert weekends. Additionally, 316 
passenger vessel trips were conducted in close proximity to Heinz 
Field. Despite the concentration of vessels, both recreational and 
commercial vessels were able to transit safely throughout the weekend, 
and positive feedback was received from industry, other government 
agencies, and recreational representatives.
    This NPRM proposes to establish an RNA using the same waterway 
controls as were used in the previous Special Local Regulations. While 
these Special Local Regulations were effective in mitigating the 
hazards of heavy congestion in and around the Pitt Pool during said 
events, a more permanent solution is required to handle the 
consistently heavy traffic throughout peak boating season. The heavy 
congestion conditions addressed by the Special Local Regulations are 
present throughout the summer months, and it would be exceptionally 
laborious for MSU Pittsburgh personnel to establish individual Special 
Local Regulations to mitigate every instance. The Coast Guard feels 
that a permanent RNA is the most effective solution for mitigating the 
dangers of heavy congestion, using proven methods, with minimal impacts 
to vessel traffic operating under normal waterway conditions.
    The purpose of this rulemaking is to ensure the safety of persons, 
vessels, and the marine environment on the navigable waters of the 
Monongahela, Allegheny, and Ohio Rivers near Pittsburgh, Pennsylvania. 
The Commander of the Eighth Coast Guard District has determined that 
potential hazards associated with the risk of collision in this area 
would be a safety concern for any vessel loitering, anchoring, 
stopping, or drifting more than 100 feet from a riverbank or in a 
manner that impedes the passage of another vessel to any launching 
ramp, marina, or fleeting area. The Coast Guard proposes this 
rulemaking under authority in 46 U.S.C. 70041 (previously 33 U.S.C. 
1231).

III. Discussion of Proposed Rule

    The District Commander proposes to establish a regulated navigation 
area for all navigable waters of the Allegheny, Monongahela, and Ohio 
Rivers between the Ninth Street Highway Bridge at mile marker (MM) 0.8 
of the Allegheny River, Fort Pitt Highway Bridge at MM 0.22 of the 
Monongahela River, and West End-North Side Highway Bridge at MM 0.8 of 
the Ohio River. This proposed rule would apply to any vessel operating 
within the area, including a naval or public vessel, except a vessel 
engaged in law enforcement, servicing aids to navigation, or surveying, 
maintaining, or improving waters within the regulated area. No vessel 
would be permitted to loiter, anchor, stop, moor, remain or drift in 
any manner that impedes safe passage of another vessel to any launching 
ramp, marina, or fleeting area unless authorized by the COTP or a 
designated representative. In addition, no vessel or person would be 
permitted to loiter, anchor, stop, remain, or drift more than 100 feet 
from any riverbank unless authorized by the COTP or a designated 
representative. They may be contacted on VHF-FM Channel 16.
    On the other hand, this rule allows vessels and people to loiter, 
anchor, stop, remain, or drift within the regulated area so long as 
they are within 100 feet of the shore or riverbank. By requiring all 
vessels to loiter, anchor, stop, remain, or drift only within 100 feet 
of the riverbanks, the center of the rivers are less likely to be 
obstructed for navigating vessels. 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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, and impact of the regulated navigation area. The regulated 
navigation area uses minimally intrusive guidelines for vessel 
operation designed to improve the safety of navigation on the waters of 
the area. This regulated navigation area does not meet any of the 
criteria for a significant regulatory action under Executive Order 
12866.

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 
regulated navigation area 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 rule would have 
a significant economic impact on it, please submit a comment (see

[[Page 31276]]

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 rule would affect 
your small business, organization, or governmental jurisdiction and you 
have questions concerning its provisions or options for compliance, 
please contact 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 contact 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 effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01 and Commandant Instruction M16475.1D, 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 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 
that prohibits loitering, anchoring, stopping, mooring, remaining, or 
drifting in any manner that impedes safe passage of another vessel to 
any launching ramp, marina, or fleeting area. 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. 01. 
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 contact 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
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; 46 U.S.C. 70051; 33 CFR 1.05-1, 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.823 to read as follows:


Sec.  165.823  Allegheny River, Monongahela River, and Ohio River, 
Pittsburgh, Pennsylvania; Regulated Navigation Area

    (a) Location. The following is a regulated navigation area (RNA): 
The waters of the Allegheny, Monongahela, and Ohio Rivers between the 
Ninth Street Highway Bridge at mile marker (MM) 0.8 on the Allegheny 
River, Fort Pitt Highway Bridge at MM 0.22 on the Monongahela River, 
and West End-North Side Highway Bridge at MM 0.8 on the Ohio River.
    (b) Applicability. This section applies to any vessel operating 
within the RNA, including a naval or public vessel, except a vessel 
engaged in:
    (1) Law enforcement;
    (2) Servicing aids to navigation; or
    (3) Surveying, maintaining, or improving waters within the RNA.
    (c) Regulations. (1) No vessel shall loiter, anchor, stop, moor, 
remain or drift at any time more than 100 feet from any river bank 
within the RNA without permission of the Captain of the Port (COTP), or 
any Coast Guard commissioned, warrant, or petty officer who has been 
designated by the COTP to act on his or her behalf.

[[Page 31277]]

    (2) No vessel shall loiter, anchor, stop, moor, remain or drift in 
any manner as to impede safe passage of another vessel to any launching 
ramp, marina, or fleeting area.

    Dated: June 11, 2019.
Paul F. Thomas,
RADM, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2019-13932 Filed 6-28-19; 8:45 am]
 BILLING CODE 9110-04-P


