Proposed Rule2023-18113
Regulated Navigation Area; St. Louis River/Duluth-Superior Harbor, Duluth, MN
Primary source
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Published
August 23, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 162 (Wednesday, August 23, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="/cdn-cgi/l/email-protection#97d3e2fbe2e3ffc0c0dad7e2e4f4f0b9fafefb"><span class="__cf_email__" data-cfemail="c581b0a9b0b1ad92928885b0b6a6a2eba8aca9">[email protected]</span></a>.
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. To
do so, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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:
<bullet> 46[deg]46'53.4268'' N
092[deg]05'45.2210'' W.
<bullet> 46[deg]46'53.1146'' N
092[deg]05'46.1287'' W.
<bullet> 46[deg]46'52.1716'' N
092[deg]05'45.4669'' W.
<bullet> 46[deg]46'51.8253'' N
092[deg]05'46.6317'' W.
<bullet> 46[deg]46'52.1940'' N
092[deg]05'46.7526'' W.
<bullet> 46[deg]47'01.7900'' N
092[deg]05'50.8326'' W.
<bullet> 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:
<bullet> 46[deg]46'34.9277'' N
092[deg]06'18.2902'' W.
<bullet> 46[deg]46'36.8355'' N
092[deg]06'18.7654'' W.
<bullet> 46[deg]46'38.5299'' N
092[deg]06'21.5290'' W.
<bullet> 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:
<bullet> 46[deg]46'22.1579'' N
092[deg]06'31.4489'' W.
<bullet> 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. <bullet> 46[deg]45'41.9081'' N
092[deg]06'11.5069'' W.
<bullet> 46[deg]45'41.7040'' N
092[deg]06'11.5337'' W.
<bullet> 46[deg]45'41.2503'' N
092[deg]06'12.6746'' W.
<bullet> 46[deg]45'40.8467'' N
092[deg]06'12.3733'' W.
<bullet> 46[deg]45'40.3784'' N
092[deg]06'13.6404'' W.
<bullet> 46[deg]45'40.1196'' N
092[deg]06'13.7025'' W.
<bullet> 46[deg]45'39.3277'' N
092[deg]06'13.0539'' W.
<bullet> 46[deg]45'37.0413'' N
092[deg]06'19.3995'' W.
<bullet> 46[deg]45'37.8242'' N
092[deg]06'19.9225'' W.
<bullet> 46[deg]45'38.2401'' N
092[deg]06'19.8461'' W.
<bullet> 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:
<bullet> 46[deg]43'12.8964'' N
092[deg]10'30.7956'' W.
<bullet> 46[deg]43'12.1656'' N
092[deg]10'28.1136'' W.
<bullet> 46[deg]43'09.3576'' N
092[deg]10'26.0256'' W.
<bullet> 46[deg]43'09.2748'' N
092[deg]10'25.9932'' W.
<bullet> 46[deg]43'08.8500'' N
092[deg]10'25.6872'' W.
<bullet> 46[deg]43'08.8320'' N
092[deg]10'21.8352'' W.
<bullet> 46[deg]43'08.0436'' N
092[deg]10'19.5564'' W.
<bullet> 46[deg]43'08.4936'' N
092[deg]10'19.0236'' W.
<bullet> 46[deg]43'09.3828'' N
092[deg]10'21.4140'' W.
<bullet> 46[deg]43'10.1640'' N
092[deg]10'22.0224'' W.
<bullet> 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:
<bullet> 46[deg]43'11.9208'' N
092[deg]10'03.2772'' W.
<bullet> 46[deg]43'12.1620'' N
092[deg]10'01.6500'' W.
<bullet> 46[deg]43'07.6872'' N
092[deg]09'48.3840'' W.
<bullet> 46[deg]43'08.1300'' N
092[deg]09'42.4980'' W.
<bullet> 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:
<bullet> 46[deg]41'38.8208'' N
092[deg]12'12.7736'' W.
<bullet> 46[deg]41'39.6166'' N
092[deg]12'08.8750'' W.
<bullet> 46[deg]41'39.3879'' N
092[deg]12'05.5895'' W.
<bullet> 46[deg]41'39.2250'' N
092[deg]12'04.3468'' W.
<bullet> 46[deg]41'39.1231'' N
092[deg]12'02.9108'' W.
<bullet> 46[deg]41'38.9452'' N
092[deg]12'01.1111'' W.
<bullet> 46[deg]41'38.6133'' N
092[deg]11'59.4509'' W.
<bullet> 46[deg]41'38.3046'' N
092[deg]11'57.7306'' W.
<bullet> 46[deg]41'37.2472'' N
092[deg]11'53.6615'' W.
<bullet> 46[deg]41'36.1915'' N
092[deg]11'49.7903'' W.
<bullet> 46[deg]41'34.5164'' N
092[deg]11'45.6293'' W.
<bullet> 46[deg]41'33.5446'' N
092[deg]11'43.9431'' W.
<bullet> 46[deg]41'30.8242'' N
092[deg]11'43.9684'' W.
<bullet> 46[deg]41'30.8278'' N
092[deg]11'39.9806'' W.
<bullet> 46[deg]41'29.1156'' N
092[deg]11'38.2350'' W.
<bullet> 46[deg]41'27.0671'' N
092[deg]11'37.5149'' W.
<bullet> 46[deg]41'25.4408'' N
092[deg]11'36.7605'' W.
<bullet> 46[deg]41'25.0347'' N
092[deg]11'36.5722'' W.
<bullet> 46[deg]41'22.7528'' N
092[deg]11'36.0788'' W.
<bullet> 46[deg]41'20.7010'' N
092[deg]11'35.6137'' W.
<bullet> 46[deg]41'19.6484'' N
092[deg]11'35.5431'' W.
<bullet> 46[deg]41'19.6484'' N
092[deg]11'35.5431'' W.
<bullet> 46[deg]41'18.5660'' N
092[deg]11'35.0700'' W.
[[Page 57381]]
<bullet> 46[deg]41'16.5697'' N
092[deg]11'34.5434'' W.
<bullet> 46[deg]41'14.4790'' N
092[deg]11'33.9685'' W.
<bullet> 46[deg]41'12.3306'' N
092[deg]11'33.9221'' W.
<bullet> 46[deg]41'12.7159'' N
092[deg]11'44.4501'' W.
<bullet> 46[deg]41'02.1240'' N
092[deg]11'44.4501'' W.
<bullet> 46[deg]41'01.9943'' N
092[deg]11'40.5819'' W.
<bullet> 46[deg]41'04.0665'' N
092[deg]11'39.1344'' W.
<bullet> 46[deg]41'03.8696'' N
092[deg]11'36.2223'' W.
<bullet> 46[deg]41'02.0724'' N
092[deg]11'34.3605'' W.
<bullet> 46[deg]40'56.9795'' N
092[deg]11'32.1366'' W.
<bullet> 46[deg]40'55.9436'' N
092[deg]11'32.3531'' W.
<bullet> 46[deg]40'53.8981'' N
092[deg]11'32.7804'' W.
<bullet> 46[deg]40'51.2261'' N
092[deg]11'33.1191'' W.
<bullet> 46[deg]40'48.9634'' N
092[deg]11'33.1528'' W.
<bullet> 46[deg]40'46.4928'' N
092[deg]11'32.8907'' W.
<bullet> 46[deg]40'45.2017'' N
092[deg]11'32.5057'' W.
<bullet> 46[deg]40'42.1916'' N
092[deg]11'38.3025'' W.
<bullet> 46[deg]40'38.9992'' N
092[deg]11'44.4501'' W.
<bullet> 46[deg]40'32.6805'' N
092[deg]11'44.4595'' W.
<bullet> 46[deg]40'28.8937'' N
092[deg]11'44.7158'' W.
<bullet> 46[deg]40'27.5301'' N
092[deg]11'46.0856'' W.
<bullet> 46[deg]40'26.6103'' N
092[deg]11'47.3902'' W.
<bullet> 46[deg]40'26.2216'' N
092[deg]11'48.4650'' W.
<bullet> 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
<a href="/cdn-cgi/l/email-protection#ebaf9e879e9f83bcbca6ab9e98888cc5868287"><span class="__cf_email__" data-cfemail="8dc9f8e1f8f9e5dadac0cdf8feeeeaa3e0e4e1">[email protected]</span></a>, 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
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