
[Federal Register Volume 88, Number 162 (Wednesday, August 23, 2023)]
[Proposed Rules]
[Pages 57378-57381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18113]



[[Page 57378]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0368]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is proposing to establish 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 
disrupting engineered remedies that are a part of the St. Louis River 
Area of Concern sediment remediation project. This proposed rulemaking 
would prohibit anchoring, dredging, laying cable, dragging, seining, 
bottom fishing, conducting salvage operations, 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 proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before September 22, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0368 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: If you have questions about this 
proposed rulemaking, call or email LT Joseph R. McGinnis, telephone 
218-725-3818, 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

II. Background, Purpose, and Legal Basis

    In 2019, the Minnesota Pollution Control Agency (MPCA) began 
discussions with the Coast Guard and other stakeholders to explore 
establishing Regulated Navigation Areas for some of the St. Louis River 
Area of Concern project sites. The purpose of these Regulated 
Navigation Areas is to prevent disrupting engineered remedies that are 
a part of the St. Louis River Area of Concern sediment remediation 
projects from unauthorized human disturbance at several remedial action 
sites containing contaminated sediment. The Federal Great Lakes 
Restoration Initiative funded these remedial actions under the Great 
Lakes Legacy Act provisions in order to improve human and environmental 
health by reducing exposure to contaminated riverbed sediments via a 
variety of engineered methods. To prevent future exposure to the 
contained contaminants, the engineered remedies need protection from 
disturbance. In 2022, the Minnesota Pollution Control Agency notified 
the Coast Guard which sites and areas would be appropriate for 
Regulated Navigation Areas. The Captain of the Port of Duluth (COTP) 
has determined that protection of these remedies will also protect 
human and environmental health.
    The purpose of this rulemaking is to ensure the protection of the 
remedies, human health, and the environment in the suggested Regulated 
Navigation Areas. The Coast Guard is proposing this rulemaking under 
authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    Coast Guard District Nine is proposing to establish the Regulated 
Navigation Areas in order to mitigate any potential unforeseen 
disruption to the remediated St. Louis River Area of Concern sites. The 
Regulated Navigation Areas would cover these six remediation sites: 
Minnesota Slip, Duluth, MN; Slip 3, Duluth, MN; Slip C, Duluth, MN; 
Azcon/Duluth Seaway Port Authority Grafield Slip C, Duluth, MN; St. 
Louis River/Interlake/Duluth Tar, Duluth, MN; U.S. Steel/Spirit Lake, 
Duluth, MN. Specific coordinates are included in the supplemental 
regulatory text. All vessels and persons are prohibited from activities 
that would disturb the integrity of the engineered remedies designed to 
address contaminated sediments at these sites. Activities may include, 
but are not limited to: anchoring, dragging, spudding, propeller 
scouring, or dredging. The regulatory text we are proposing appears at 
the end of this document.
    The creation of the Regulated Navigation Areas will render the need 
for established safety zones at two sites obsolete, so this rulemaking 
would also repeal Sec.  165.905 USX Superfund Site Safety Zones: St. 
Louis River and Sec.  165.927 Safety Zone; St. Louis River, Duluth/
Interlake Tar Remediation Site, Duluth, MN.

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 Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB).
    This regulatory action determination is based on the necessity to 
avoid disrupting these remediated St. Louis River Area of Concern sites 
under most circumstances. Dredging projects for slips in the impacted 
areas which may need to be dredged in the future require review by 
state agencies prior to dredging. Thus, there should be little 
disruption and/or plans to resolve any disturbance to existing remedies 
prior to dredging projects.

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 Areas 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

[[Page 57379]]

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 proposed 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. 
Nothing in this proposed rule will preempt the rights to hunt, fish, 
and gather granted to Indian tribes under the 1854 Treaty with the U.S. 
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 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 all 
vessels. Normally such actions are categorically excluded from further 
review under paragraph L[60a] of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 1. 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-2023-0369 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. 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, 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.  165.945 to read as follows:


Sec.  165.945  Regulated navigation area; St. Louis River Area of 
Concern, Duluth, Minnesota

    (a) Location. The following areas are a regulated navigation area:

[[Page 57380]]



                                            Table 1 to Paragraph (a)
----------------------------------------------------------------------------------------------------------------
                                                                          Regulated area (Note: all geographic
                                                                       coordinates expressed in term of latitude
                 Number                            Site name            and longitude datum are based on WGS 84
                                                                                      coordinates)
----------------------------------------------------------------------------------------------------------------
1.......................................  Minnesota Slip, Duluth, MN.  The aquatic area within a polygon
                                                                        connected by the following points:
                                                                           46[deg]46'53.4268'' N
                                                                           092[deg]05'45.2210'' W.
                                                                           46[deg]46'53.1146'' N
                                                                           092[deg]05'46.1287'' W.
                                                                           46[deg]46'52.1716'' N
                                                                           092[deg]05'45.4669'' W.
                                                                           46[deg]46'51.8253'' N
                                                                           092[deg]05'46.6317'' W.
                                                                           46[deg]46'52.1940'' N
                                                                           092[deg]05'46.7526'' W.
                                                                           46[deg]47'01.7900'' N
                                                                           092[deg]05'50.8326'' W.
                                                                           46[deg]47'00.8887'' N
                                                                           092[deg]05'52.4477'' W.
2.......................................  Slip 3, Duluth, MN.........  The aquatic area within a polygon
                                                                        connected by the following points:
                                                                           46[deg]46'34.9277'' N
                                                                           092[deg]06'18.2902'' W.
                                                                           46[deg]46'36.8355'' N
                                                                           092[deg]06'18.7654'' W.
                                                                           46[deg]46'38.5299'' N
                                                                           092[deg]06'21.5290'' W.
                                                                           46[deg]46'37.6368'' N
                                                                           092[deg]06'22.6961'' W.
3.......................................  Slip C, Duluth, MN.........  The aquatic area to the southwest of a
                                                                        line connected by the following points:
                                                                           46[deg]46'22.1579'' N
                                                                           092[deg]06'31.4489'' W.
                                                                           46[deg]46'21.0546'' N
                                                                           092[deg]06'27.9639'' W.
4.......................................  Azcon/Duluth Seaway Port     The aquatic area within a polygon
                                           Authority Garfield Slip C,   connected by the following points:
                                           Duluth, MN.                  46[deg]45'41.9081'' N
                                                                        092[deg]06'11.5069'' W.
                                                                           46[deg]45'41.7040'' N
                                                                           092[deg]06'11.5337'' W.
                                                                           46[deg]45'41.2503'' N
                                                                           092[deg]06'12.6746'' W.
                                                                           46[deg]45'40.8467'' N
                                                                           092[deg]06'12.3733'' W.
                                                                           46[deg]45'40.3784'' N
                                                                           092[deg]06'13.6404'' W.
                                                                           46[deg]45'40.1196'' N
                                                                           092[deg]06'13.7025'' W.
                                                                           46[deg]45'39.3277'' N
                                                                           092[deg]06'13.0539'' W.
                                                                           46[deg]45'37.0413'' N
                                                                           092[deg]06'19.3995'' W.
                                                                           46[deg]45'37.8242'' N
                                                                           092[deg]06'19.9225'' W.
                                                                           46[deg]45'38.2401'' N
                                                                           092[deg]06'19.8461'' W.
                                                                           46[deg]45'38.7466'' N
                                                                           092[deg]06'20.2255'' W.
5.......................................  St. Louis River/Interlake/   The aquatic area north of a line
                                           Duluth Tar, Duluth, MN.      connected by the following points:
                                                                        46[deg]43'12.8964'' N
                                                                        092[deg]10'30.7956'' W.
                                                                           46[deg]43'12.1656'' N
                                                                           092[deg]10'28.1136'' W.
                                                                           46[deg]43'09.3576'' N
                                                                           092[deg]10'26.0256'' W.
                                                                           46[deg]43'09.2748'' N
                                                                           092[deg]10'25.9932'' W.
                                                                           46[deg]43'08.8500'' N
                                                                           092[deg]10'25.6872'' W.
                                                                           46[deg]43'08.8320'' N
                                                                           092[deg]10'21.8352'' W.
                                                                           46[deg]43'08.0436'' N
                                                                           092[deg]10'19.5564'' W.
                                                                           46[deg]43'08.4936'' N
                                                                           092[deg]10'19.0236'' W.
                                                                           46[deg]43'09.3828'' N
                                                                           092[deg]10'21.4140'' W.
                                                                           46[deg]43'10.1640'' N
                                                                           092[deg]10'22.0224'' W.
                                                                           46[deg]43'10.8192'' N
                                                                           092[deg]10'21.6264'' W.
                                                                          and the aquatic area to the north of a
                                                                           line connected by the following
                                                                           points:
                                                                           46[deg]43'11.9208'' N
                                                                           092[deg]10'03.2772'' W.
                                                                           46[deg]43'12.1620'' N
                                                                           092[deg]10'01.6500'' W.
                                                                           46[deg]43'07.6872'' N
                                                                           092[deg]09'48.3840'' W.
                                                                           46[deg]43'08.1300'' N
                                                                           092[deg]09'42.4980'' W.
                                                                           46[deg]43'10.2072'' N
                                                                           092[deg]09'42.4620'' W.
6.......................................  U.S. Steel/Spirit Lake,      The aquatic area to the west of a line
                                           Duluth, MN.                  connected by the following points:
                                                                           46[deg]41'38.8208'' N
                                                                           092[deg]12'12.7736'' W.
                                                                           46[deg]41'39.6166'' N
                                                                           092[deg]12'08.8750'' W.
                                                                           46[deg]41'39.3879'' N
                                                                           092[deg]12'05.5895'' W.
                                                                           46[deg]41'39.2250'' N
                                                                           092[deg]12'04.3468'' W.
                                                                           46[deg]41'39.1231'' N
                                                                           092[deg]12'02.9108'' W.
                                                                           46[deg]41'38.9452'' N
                                                                           092[deg]12'01.1111'' W.
                                                                           46[deg]41'38.6133'' N
                                                                           092[deg]11'59.4509'' W.
                                                                           46[deg]41'38.3046'' N
                                                                           092[deg]11'57.7306'' W.
                                                                           46[deg]41'37.2472'' N
                                                                           092[deg]11'53.6615'' W.
                                                                           46[deg]41'36.1915'' N
                                                                           092[deg]11'49.7903'' W.
                                                                           46[deg]41'34.5164'' N
                                                                           092[deg]11'45.6293'' W.
                                                                           46[deg]41'33.5446'' N
                                                                           092[deg]11'43.9431'' W.
                                                                           46[deg]41'30.8242'' N
                                                                           092[deg]11'43.9684'' W.
                                                                           46[deg]41'30.8278'' N
                                                                           092[deg]11'39.9806'' W.
                                                                           46[deg]41'29.1156'' N
                                                                           092[deg]11'38.2350'' W.
                                                                           46[deg]41'27.0671'' N
                                                                           092[deg]11'37.5149'' W.
                                                                           46[deg]41'25.4408'' N
                                                                           092[deg]11'36.7605'' W.
                                                                           46[deg]41'25.0347'' N
                                                                           092[deg]11'36.5722'' W.
                                                                           46[deg]41'22.7528'' N
                                                                           092[deg]11'36.0788'' W.
                                                                           46[deg]41'20.7010'' N
                                                                           092[deg]11'35.6137'' W.
                                                                           46[deg]41'19.6484'' N
                                                                           092[deg]11'35.5431'' W.
                                                                           46[deg]41'19.6484'' N
                                                                           092[deg]11'35.5431'' W.
                                                                           46[deg]41'18.5660'' N
                                                                           092[deg]11'35.0700'' W.

[[Page 57381]]

 
                                                                           46[deg]41'16.5697'' N
                                                                           092[deg]11'34.5434'' W.
                                                                           46[deg]41'14.4790'' N
                                                                           092[deg]11'33.9685'' W.
                                                                           46[deg]41'12.3306'' N
                                                                           092[deg]11'33.9221'' W.
                                                                           46[deg]41'12.7159'' N
                                                                           092[deg]11'44.4501'' W.
                                                                           46[deg]41'02.1240'' N
                                                                           092[deg]11'44.4501'' W.
                                                                           46[deg]41'01.9943'' N
                                                                           092[deg]11'40.5819'' W.
                                                                           46[deg]41'04.0665'' N
                                                                           092[deg]11'39.1344'' W.
                                                                           46[deg]41'03.8696'' N
                                                                           092[deg]11'36.2223'' W.
                                                                           46[deg]41'02.0724'' N
                                                                           092[deg]11'34.3605'' W.
                                                                           46[deg]40'56.9795'' N
                                                                           092[deg]11'32.1366'' W.
                                                                           46[deg]40'55.9436'' N
                                                                           092[deg]11'32.3531'' W.
                                                                           46[deg]40'53.8981'' N
                                                                           092[deg]11'32.7804'' W.
                                                                           46[deg]40'51.2261'' N
                                                                           092[deg]11'33.1191'' W.
                                                                           46[deg]40'48.9634'' N
                                                                           092[deg]11'33.1528'' W.
                                                                           46[deg]40'46.4928'' N
                                                                           092[deg]11'32.8907'' W.
                                                                           46[deg]40'45.2017'' N
                                                                           092[deg]11'32.5057'' W.
                                                                           46[deg]40'42.1916'' N
                                                                           092[deg]11'38.3025'' W.
                                                                           46[deg]40'38.9992'' N
                                                                           092[deg]11'44.4501'' W.
                                                                           46[deg]40'32.6805'' N
                                                                           092[deg]11'44.4595'' W.
                                                                           46[deg]40'28.8937'' N
                                                                           092[deg]11'44.7158'' W.
                                                                           46[deg]40'27.5301'' N
                                                                           092[deg]11'46.0856'' W.
                                                                           46[deg]40'26.6103'' N
                                                                           092[deg]11'47.3902'' W.
                                                                           46[deg]40'26.2216'' N
                                                                           092[deg]11'48.4650'' W.
                                                                           46[deg]40'25.0613'' N
                                                                           092[deg]11'51.2108'' W.
----------------------------------------------------------------------------------------------------------------

    (b) Regulations. In addition to the general Regulated Navigation 
Area regulations in Sec. Sec.  165.10, 165.11, and 165.13:
    (1) All vessels and persons are prohibited from activities that 
would disturb the integrity of engineered remedies designed to address 
contaminated sediments at the sites identified above that are described 
in the St. Louis River Area of Concern Remedial Action Plan. Such 
activities may include, but are not limited to: anchoring, dragging, 
spudding, propeller scouring, or dredging.
    (2) The prohibitions described in paragraph (b)(1) of this section 
shall not apply to vessels or persons engaged in activities associated 
with future contaminated sediment remediation projects or other state 
or federally approved and permitted construction or monitoring 
projects, provided that the Captain of the Port (COTP), Duluth, is 
given advance notice of those activities by the local, state, or 
Federal agencies or by the regulated private entities conducting those 
activities.
    (3) The prohibitions described in paragraph (b)(1) of this section 
shall not supersede restrictions outlined in executed Records of 
Decision for Superfund sites.
    (4) Vessels may otherwise transit or navigate within this area 
without reservation.
    (c) Waivers. Upon written request stating the need for and proposed 
conditions of the waiver and any proposed precautionary measures, the 
Captain of the Port (COTP) Duluth may, in consultation with local, 
state, and Federal agencies or regulated private entities, authorize a 
waiver from this section if the COTP determines that activity for which 
the waiver is sought can take place without undue risk to environmental 
remediation construction, monitoring, and maintenance. Requests for 
waivers should be submitted in writing to Commander, U.S. Coast Guard 
Marine Safety Unit, Duluth, 515 West First Street, Room 145, Duluth, MN 
55802 to facilitate review by the U.S. Coast Guard.
    (d) Penalties. Those who violate this section are subject to the 
penalties set forth in 46 U.S.C. 70036.
    (e) Enforcement period. This Regulated Navigation Area's 
requirements are enforceable 24 hours a day as long as this Regulated 
Navigation Area is in place.
    (f) Contact information. If you observe violations of the 
regulations in this section, you may notify the COTP by email, at 
[email protected], or by phone, 218-725-3818.

    Dated: August 17, 2023.
Jonathan P. Hickey,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2023-18113 Filed 8-22-23; 8:45 am]
BILLING CODE 9110-04-P


