[Federal Register Volume 86, Number 182 (Thursday, September 23, 2021)]
[Rules and Regulations]
[Pages 52826-52829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20587]



[[Page 52826]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0745]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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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 persons, and the marine environment from the 
potential safety hazards associated with construction operations at the 
new Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial 
(US-301) Bridge, which will occur from 7 a.m. on September 20, 2021, 
through 8 p.m. on December 31, 2021. This rule will prohibit persons 
and vessels from being in the safety zone unless authorized by the 
Captain of the Port, Sector Maryland-National Capital Region or a 
designated representative. Due to the lengthy duration of the safety 
zone, the Coast Guard is accepting and reviewing public comments until 
October 15, 2021. While the rule is being enforced, beginning September 
20, 2021, the Coast Guard reserves the right to modify the safety zone 
if an issue is raised by the public comments that requires a 
modification.

DATES: This rule is effective without actual notice from September 23, 
2021 through December 31, 2021. For the purposes of enforcement, actual 
notice will be issued from September 20, 2021, until September 23, 
2021. Comments and related materials will be accepted and reviewed by 
the Coast Guard until October 25, 2021.

ADDRESSES: Submit comments and material online at https://www.regulations.gov (see Section II of SUPPLEMENTARY INFORMATION for 
additional details). To view documents mentioned in this preamble as 
being available in the docket, go to https://www.regulations.gov, type 
USCG-2021-0745 in the ``SEARCH'' box and click ``SEARCH.'' Click on 
DOCUMENTS on the line associated with this rule below ``SEARCH''.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LCDR Samuel Danus, Sector Maryland-NCR, Waterways 
Management Division, U.S. Coast Guard: Telephone 410-576-2519, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    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. You may submit your comments and material online at 
https://www.regulations.gov by typing the docet number in the 
``SEARCH'' box and click ``SEARCH.'' Click on ``Submit a Comment'' on 
the line associated with this rulemaking.

2. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to https://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on Open Docket Folder on the line associated with this 
rulemaking.

III. Background Information and Regulatory History

    On August 23, 2021, the Coast Guard established a temporary safety 
zone for certain waters of the Potomac River in association with the 
construction operations at the new Governor Harry W. Nice/Senator 
Thomas ``Mac'' Middleton Memorial (US-301) Bridge (86 FR 46970; Docket 
No. USCG-2021-0650). That rule had an effective date of 7 a.m. on 
August 23, 2021, through 8 p.m. on September 11, 2021.
    On September 10, 2021, Skanska-Corman-McLean, Joint Venture, 
notified the Coast Guard that the company will continue to set 200-ton 
pre-cast fender ring elements at the new Governor Harry W. Nice/Senator 
Thomas ``Mac'' Middleton Memorial (US-301) Bridge at Piers 43 and 44, 
which are adjacent on either side of the federal navigation channel 
from September 13, 2021, through December 31, 2021. The operation 
requires the daily movement in, anchoring, and movement out of a large 
crane, as well as nighttime diver work. This operation will impede 
vessels requiring the use of the channel. The U.S. Coast Guard 
established a temporary safety zone for certain waters of the Potomac 
River in association with the construction operations at the new 
Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial (US-
301) Bridge (Docket No. USCG-2021-0127) from 7 a.m. on September 13, 
2021, to 8 p.m. on September 18, 2021. The U.S. Coast Guard issued a 
temporary rule (Docket No. USCG-2021-0127) for only a six calendar day 
period due to the timing when the notification was received by the 
company. Additional rulemaking is needed to cover the entire period of 
work provided by the company.
    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 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 doing so would be impracticable. 
Construction operations involving crane heavy lifts at the new Governor 
Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge 
must occur within the federal navigation channel. Immediate action is 
needed to respond to the potential safety hazards associated with 
bridge construction. Hazards from the construction 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 September 20, 2021, to guard against these hazards 
and lack sufficient time to provide a reasonable comment period and 
then consider those comments before issuing the rule.
    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

[[Page 52827]]

this rule would be contrary to the public interest because immediate 
action is needed to respond to the potential safety hazards associated 
with construction operations at the new Governor Harry W. Nice/Senator 
Thomas ``Mac'' Middleton Memorial (US-301) Bridge conducted within the 
federal navigation channel.

IV. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that 
potential hazards associated with bridge construction starting 
September 20, 2021 will be a safety concern for anyone within the 
federal navigation channel at the new Governor Harry W. Nice/Senator 
Thomas ``Mac'' Middleton Memorial (US-301) Bridge construction 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 constructed.

V. Discussion of the Rule

    This rule establishes a temporary safety zone September 20, 2021, 
until December 31, 2021. The zone will be enforced as follows:

------------------------------------------------------------------------
                Date(s)                               Hours
------------------------------------------------------------------------
September 20, 2021 through September     7 a.m. September 20, 2021
 24, 2021.                                through 8 p.m. September 24,
                                          2021.
September 25, 2021 through October 16,   Monday through Saturday, 7 a.m.
 2021.                                    to 8 p.m.
October 18, 2021 through October 22,     7 a.m. October 18, 2021 through
 2021.                                    8 p.m. October 22, 2021.
October 23, 2021 through December 31,    Monday through Saturday, 7 a.m.
 2021, except November 25, 2021 and       to 8 p.m.
 December 25, 2021.
------------------------------------------------------------------------

    The safety zone will cover all navigable waters of the Potomac 
River, encompassed by a line connecting the following points beginning 
at 38[deg]21'50.96'' N, 076[deg]59'22.04'' W, thence south to 
38[deg]21'43.08'' N, 076[deg]59'20.55'' W, thence west to 
38[deg]21'41.00'' N, 076[deg]59'34.90'' W, thence north to 
38[deg]21'48.90'' N, 076[deg]59'36.80'' W, and east back to the 
beginning point, located between Charles County, MD and King George 
County, VA. The temporary safety zone is approximately 450 yards in 
width and 270 yards in length.
    This regulation requires that the bridge owner post a sign facing 
the northern and southern approaches of the navigation channel labeled 
``BRIDGE WORK--DANGER--STAY AWAY'' affixed to the sides of the on-scene 
marine equipment and vessels operating within the area of the safety 
zone Marine equipment means any vessel, barge or other equipment 
operated by Skanska-Corman-McLean, Joint Venture, or its 
subcontractors.This notice will consist of a diamond shaped sign 
(minimum 4 feet by 4 feet) with a 3-inch orange retro reflective 
border. The word ``DANGER'' will be 10 inch black block letters 
centered on the sign with the words ``BRIDGE WORK'' and ``STAY AWAY'' 
in 6 inch black block letters placed above and below the word 
``DANGER,'' respectively, on a white background.
    The duration of the zone is intended to protect personnel, and the 
marine environment in these navigable waters while the tub sections are 
being set at the new Governor Harry W. Nice/Senator Thomas ``Mac'' 
Middleton Memorial (US-301) Bridge at Piers 43 and 44, which are 
adjacent on either side of the federal navigation channel. Except for 
marine equipment and vessels operated by Skanska-Corman-McLean, Joint 
Venture, or its subcontractors, no vessel or person will be permitted 
to enter the safety zone without obtaining permission from the COTP or 
a designated representative.
    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 Captain of the 
Port Maryland-National Capital Region (COTP) in the enforcement of the 
safety zone. To seek permission to enter, contact the COTP or the 
COTP's representative by telephone number 410-576-2693 or on Marine 
Band Radio VHF-FM channel 16 (156.8 MHz). Those in the safety zone must 
comply with all lawful orders or directions given to them by the COTP 
or the COTP's designated representative.
    The U.S. Coast Guard may be assisted in the patrol and enforcement 
of the safety zone by Federal, State, and local agencies.
    The COTP will notify the public that the safety zone will be 
enforced by all appropriate means to the affected segments of the 
public, as practicable, in accordance with 33 CFR 165.7(a).

VI. 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 size and duration 
of the safety zone. The temporary safety zone is approximately 450 
yards in width and 270 yards in length. We anticipate that there will 
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. Vessel traffic not required to use the navigation channel will 
be able to safely transit around the safety zone. Such vessels may be 
able to transit to the east of the federal navigation channel, as 
similar vertical clearance and water depth exist under the next bridge 
span to the east. This safety zone will impact a small designated area 
of the Potomac River for 87 days but coincides with the non-peak season 
for recreational boating.

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

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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 
temporary safety zone may be small entities, for the reasons stated in 
section VI.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 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 6 total days that will prohibit entry within a 
portion of the Potomac River. It is categorically excluded from further 
review under paragraph L60(a) 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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T05-0745 to read as follows:


Sec.  165.T05-0745  Safety Zone; Potomac River, Between Charles County, 
MD and King George County, VA.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Potomac River, encompassed by a line connecting the 
following points beginning at 38[deg]21'50.96'' N, 076[deg]59'22.04'' 
W, thence south to 38[deg]21'43.08'' N, 076[deg]59'20.55'' W, thence 
west to 38[deg]21'41.00'' N, 076[deg]59'34.90'' W, thence north to 
38[deg]21'48.90'' N, 076[deg]59'36.80'' W, and east back to the 
beginning point, located between Charles County, MD and King George 
County, VA. These coordinates are based on datum NAD 83.
    (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 Captain of the 
Port Maryland-National Capital Region (COTP) in the enforcement of the 
safety zone.
    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, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by telephone number 410-576-2693 or on Marine Band Radio 
VHF-FM channel 16 (156.8 MHz). Those in the safety zone must comply 
with all lawful orders or directions given to them by the COTP or the 
COTP's designated representative.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted in 
the

[[Page 52829]]

patrol and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement. This safety zone will be enforced during the 
period described in paragraph (f) of this section. A ``BRIDGE WORK--
DANGER--STAY AWAY'' sign facing the northern and southern approaches of 
the navigation channel will be posted on the sides of the marine 
equipment on-scene within the location described in paragraph (a) of 
this section.
    (f) Effective period. This section is effective from 7 a.m. to 8 
p.m. on Monday through Saturday from September 20, 2021, through 
December 31, 2021.
    (g) Enforcement period. (1) The section will be enforced during the 
following periods: from 7 a.m. September 20, 2021, through 8 p.m. 
September 24, 2021; from 7 a.m. October 18, 2021 through 8 p.m. October 
22, 2021; from 7 a.m. to 8 p.m. on September 25, 2021, September 27, 
2021, September 28, 2021, September 29, 2021, September, 30, 2021, 
October 1, 2021, October 2, 2021, October 4, 2021, October 5, 2021, 
October 6, 2021, October 7, 2021, October 8, 2021, October 9, 2021, 
October 11, 2021, October 12, 2021, October 13, 2021, October 14, 2021, 
October 15, 2021, October 16, 2021, October 23, 2021, October 25, 2021, 
October 26, 2021, October 27, 2021, October 28, 2021, October 29, 2021, 
October 30, 2021, November 1, 2021, November 2, 2021, November 3, 2021, 
November 4, 2021 November 5, 2021, November 6, 2021, November 8, 2021, 
November 9, 2021, November 10, 2021, November 11, 2021, November 12, 
2021, November 13, 2021, November 15, 2021, November 16, 2021, November 
17, 2021, November 18, 2021, November 19, 2021, November 20, 2021, 
November 22, 2021, November 23, 2021, November 24, 2021, November 26, 
2021, November 27, 2021, November 29, 2021, November 30, 2021, December 
1, 2021, December 2, 2021, December 3, 2021, December 4, 2021 December 
6, 2021, December, 7, 2021, December 8, 2021, December 9, 2021, 
December 10, 2021, December 11, 2021, December 13, 2021, December 14, 
2021, December 15, 2021, December 16, 2021, December 17, 2021, December 
18, 2021, December 20, 2021, December 21, 2021, December 22, 2021, 
December 23, 2021, December 24, 2021, December 27, 2021, December 28, 
2021 December 29, 2021, December 30, 2021 and December 31, 2021.

    Dated: September 17, 2021.
David E. O'Connell,
Commander, U.S. Coast Guard, Captain of the Port Sector Maryland-
National Capital Region.
[FR Doc. 2021-20587 Filed 9-22-21; 8:45 am]
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