[Federal Register Volume 88, Number 109 (Wednesday, June 7, 2023)]
[Rules and Regulations]
[Pages 37149-37152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12169]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0420]
RIN 1625-AA00


Safety Zone; Potomac River, Between Charles County, MD and King 
George County, VA

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain waters of the Potomac River. This action is necessary to 
provide for the safety of life on these navigable waters at the old 
Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial (US-
301) Bridge during demolition operations from June 10, 2023 through 
July 14, 2023. This rule will prohibit persons and vessels from being 
in the safety zone unless authorized by the Captain of the Port, 
Maryland-National Capital Region or a designated representative.

DATES: This rule is effective from June 7, 2023, through July 14, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0420 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email BM1 Michael Klopp, Sector Maryland-NCR, Waterways 
Management Division, U.S. Coast Guard: telephone 410-576-2674, 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 Information and Regulatory History

    On May 18, 2023, Skanska-Corman-McLean, Joint Venture, notified the 
Coast Guard that the company will be conducting bridge demolition 
operations at the old Governor Harry W. Nice/Senator Thomas ``Mac'' 
Middleton Memorial (US-301) Bridge. The work described by the 
contractor requires the use of explosives, and debris removal and 
hydrographic surveying equipment. During explosive detonation periods, 
there can be no marine traffic transiting near or around the bridge for 
safety reasons. On April 13, 2023, the Coast Guard was notified that 
the explosive demolition of the steel trusses would be completed no 
later than June 9, 2023. However, the contractor reported that due to 
inclement weather and explosive supply, they now anticipate being 
completed no later than July 14, 2023.
    The Coast Guard is issuing this temporary rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good

[[Page 37150]]

cause finds that those procedures are ``impracticable, unnecessary, or 
contrary to the public interest.'' Under 5 U.S.C. 553(b)(B), the Coast 
Guard finds that good cause exists for not publishing a notice of 
proposed rulemaking (NPRM) with respect to this rule because it is 
impracticable and contrary to the public interest. Demolition 
operations involving explosives will occur at the old Governor Harry W. 
Nice/Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge across 
the Potomac River and immediate action is needed to respond to the 
potential safety hazards associated with bridge demolition. Hazards 
from the demolition operations include low-hanging or falling ropes, 
cables, large piles and cement cast portions, dangerous projectiles, 
and/or other debris. We must establish this safety zone by June 10, 
2023, to guard against these hazards.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. Delaying the effective date of 
this rule would be impracticable and contrary to the public interest 
because immediate action is needed to respond to the potential safety 
hazards associated with demolition operations at the old Governor Harry 
W. Nice/Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port (COTP) has determined that potential 
hazards associated with bridge demolition starting June 10, 2023, will 
be a safety concern for anyone near the old Governor Harry W. Nice/
Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge demolition 
site. This rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone while the 
bridge is being demolished.

IV. Discussion of the Rule

    The COTP is establishing a safety zone from 12:01 a.m. on June 10, 
2023, to 11:59 p.m. on July 14, 2023. The safety zone will cover the 
following areas:
    Area 1. All navigable waters of the Potomac River, encompassed by a 
line connecting the following points beginning at 38[deg]21'38.74'' N, 
077[deg]00'52.99'' W, thence east to 38[deg]21'52.67'' N, 
076[deg]59'2.51'' W, thence south along the shoreline to 
38[deg]21'43.45'' N, 076[deg]58'56.64.22'' W, thence west to 
38[deg]21'28.91'' N, 077[deg]00'52.81'' W, and thence north along the 
shoreline back to the beginning point, located in King George County, 
VA.
    Area 2. All navigable waters of the Potomac River, within 1,500 
feet of the explosives barge located in approximate position 
38[deg]21'21.47'' N, 076[deg]59'45.40'' W.
    The duration of the zone is intended to ensure the safety of 
vessels and these navigable waters before, during, and after the 
scheduled demolition and debris removal. Except for marine equipment 
and vessels operated by Skanska-Corman-McLean, Joint Venture, or its 
subcontractors, no vessel or person would be permitted to enter the 
safety zone without obtaining permission from the COTP or a designated 
representative. The term designated representative also includes an 
employee or contractor of Skanska-Corman-McLean, Joint Venture for the 
sole purposes of designating and establishing safe transit corridors, 
to permit passage into or through the safety zone, or to notify vessels 
and individuals that they have entered the safety zone and are required 
to leave.
    The COTP will notify the affected segments of the public by all 
appropriate means, as provided at 33 CFR 165.7(a), of the establishment 
of the safety zone. Such means of notification will include, but will 
not be limited to, Broadcast Notice to Mariners. Vessels or persons 
violating this rule are subject to the penalties set forth in 46 U.S.C. 
70036. The regulatory text appears at the end of this document.

V. Regulatory Analyses

    We developed this 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 rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the size, location 
and time of year of the safety zone. The temporary safety zone is 
approximately 3000 yards in width and 350 yards in length. This safety 
zone would impact a small designated area of the Potomac River for 35 
total days, but we anticipate that there would be no vessels that are 
unable to conduct business. Excursion vessels and commercial fishing 
vessels are not impacted by this rulemaking. Excursion vessels do not 
operate in this area, and commercial fishing vessels are not impacted 
because of their draft. Some towing vessels may be impacted, but bridge 
project personnel have been conducting outreach throughout the project 
in order to coordinate with those vessels. During explosive 
detonations, the Coast Guard will have law enforcement assets on-scene 
to enforce the safety zone immediately before, during and after 
explosive detonations. Moreover, the Coast Guard will issue Local 
Notices to Mariners and a Broadcast Notice to Mariners via VHF-FM 
marine channel 16 about the zone.

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 rule 
will not have a significant economic impact on a substantial number of 
small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 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 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's

[[Page 37151]]

responsiveness to small business. If you wish to comment on actions by 
employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The 
Coast Guard will not retaliate against small entities that question or 
complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

    This rule will 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 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 rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does 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.

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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this 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 determined that this action is one of 
a category of actions that do not individually or cumulatively have a 
significant effect on the human environment. This rule involves a 
safety zone lasting 35 total days that would prohibit entry within a 
portion of the Potomac River. Normally such actions are categorically 
excluded from further review under paragraph L60 of Appendix A, Table 1 
of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of 
Environmental Consideration supporting this determination is available 
in the docket. For instructions on locating the docket, see the 
ADDRESSES section of this preamble.

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.

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 amends 
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.T05-0420 to read as follows:


Sec.  165.T05-0420  Safety Zone; Potomac River, Between Charles County, 
MD and King George County, VA.

    (a) Location. The following areas are safety zones. These 
coordinates are based on North American Datum of 1983 (NAD 83).
    (1) Area 1. All navigable waters of the Potomac River, encompassed 
by a line connecting the following points beginning at 
38[deg]21'38.74'' N, 077[deg]00'52.99'' W, thence east to 
38[deg]21'52.67'' N, 076[deg]59'2.51'' W, thence south along the 
shoreline to 38[deg]21'43.45'' N, 076[deg]58'56.64.22'' W, thence west 
to 38[deg]21'28.91'' N, 077[deg]00'52.81'' W, and thence north along 
the shoreline back to the beginning point, located in King George 
County, VA.
    (2) Area 2. All navigable waters of the Potomac River within 1,500 
feet of the explosives barge located in approximate position 
38[deg]21'21.47'' N, 076[deg]59'45.40'' W.
    (b) Definitions. As used in this section--
    Captain of the Port (COTP) means the Commander, U.S. Coast Guard 
Sector Maryland-National Capital Region.
    Designated representative means any Coast Guard commissioned, 
warrant, or petty officer, including a Coast Guard coxswain, petty 
officer, or other officer operating a Coast Guard vessel and a Federal, 
State, and local officer designated by or assisting the COTP in the 
enforcement of the safety zone. The term also includes an employee or 
contractor of Skanska-Corman-McLean, Joint Venture for the sole 
purposes of designating and establishing safe transit corridors, to 
permit passage into or through the safety zone, or to notify vessels 
and individuals that they have entered the safety zone and are required 
to leave.
    Marine equipment means any vessel, barge or other equipment 
operated by Skanska-Corman-McLean, Joint Venture, or its 
subcontractors.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, except for marine equipment, you may not enter 
the safety zone described in paragraph (a) of this section unless 
authorized by the COTP, Skanska-Corman-McLean, Joint Venture, or the 
COTP's designated representative. If a vessel or person is notified by 
the COTP, Skanska-Corman-McLean, Joint Venture, or the COTP's 
designated representative that they have entered the safety zone 
without permission, they are required to immediately leave in a safe 
manner following the directions given.
    (2) Mariners requesting to transit any of the safety zone areas in 
paragraph (a) of this section must first contact the Skanska-Corman-
McLean, Joint Venture designated representative, the on-site project 
manager by telephone number 781-953-1465 or on Marine Band Radio VHF-FM 
channels 13 and 16 from the pusher tug Miss Stacy. If permission is 
granted, mariners must proceed at their own risk and strictly observe 
any and all instructions provided by the COTP, Skanska-Corman-McLean, 
Joint Venture, or designated representative to the mariner regarding 
the conditions of entry to and exit from any area of the safety zone. 
The COTP or the COTP's representative can be contacted by telephone 
number 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 
MHz).

[[Page 37152]]

    (3) The Coast Guard will publish a notice in the Fifth Coast Guard 
District Local Notice to Mariners and issue marine information 
broadcasts on VHF-FM marine band radio announcing specific enforcement 
dates and times.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted in 
the patrol and enforcement of the safety zone by Federal, State, and 
local agencies.
    (e) Enforcement period. This section will be enforced from 12:01 
a.m. on June 10, 2023, to 11:59 p.m. on July 14, 2023.

    Dated: June 1, 2023.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Maryland-
National Capital Region.
[FR Doc. 2023-12169 Filed 6-6-23; 8:45 am]
BILLING CODE 9110-04-P


