[Federal Register Volume 86, Number 212 (Friday, November 5, 2021)]
[Rules and Regulations]
[Pages 61068-61071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24271]


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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.

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SUMMARY: The Coast Guard is revising a temporary safety zone that was 
established 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 November 2, 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.

DATES: This rule is effective without actual notice from November 5, 
2021 through December 31, 2021. For the purposes of enforcement, actual 
notice will be issued from November 2, 2021, until November 5, 2021.

ADDRESSES: 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.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

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
Sec.  Section
TFR Temporary Final Rule
U.S.C. United States Code

II. Background Information and Regulatory History

    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. In response, on 
September 17, 2021, the Coast Guard issued a TFR; request for comments, 
Safety Zone; Potomac River, Between Charles County, MD and King George 
County, VA (86 FR 52826). There, we stated why we issued the TFR, and 
invited comments on our regulatory action related to this bridge 
construction activity due to the duration of the rule. During the 
comment period that ended October 25, 2021, we received 5 comments. The 
Coast Guard has amended this rule based on these comments.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this amended rule effective less than 30 days after 
publication in the Federal Register. Delaying the effective date of 
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.

III. 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 November 
2, 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.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received 5 comments to the rule. Two commenters 
expressed their support of the zone, including the temporary safety 
zone's importance to protecting the marine environment. We concur, as 
stated in Section III, the rule is needed to protect personnel, 
vessels, and the marine environmental in the navigable waters within 
the safety zone.
    The remaining 3 comments were provided by the bridge contractor, 
Skanska-Corman-McLean, Joint Venture, who provided revised dates for 
work requiring the continuous 24/7 enforcement of the zone for certain 
periods. One comment stated that the contruction of protective fender 
rings around Piers 43 and 44, on either side of the federal channel, 
was scheduled to occur October 25, 2021, through October 29, 2021. 
However, the contractor provided a subsequent comment, eight days later 
that revised the dates for this activity to 7 a.m. on November 4, 2021, 
through 8 p.m. on November 6, 2021, and 7 a.m. November 8, 2021, 
through 8 p.m. November 10, 2021. In addition, the final comment 
provided by the bridge contractor stated work required to set 
structural steel across the federal channel, originally scheduled to 
occur in November 2021, is now scheduled to occur 7 a.m. on December 6, 
2021 through 8 p.m. on December 18, 2021.
    Based on the comments provided by the contractor, the Coast Guard 
is

[[Page 61069]]

amending the regulatory text of this rule. The work described by the 
contractor requires the movement in and anchoring at multiple points of 
a large crane in the channel, as well as, nighttime diver work. This 
operation will impede vessels requiring the use of the channel. 
Although the setting of structural steel across the channel was not 
discussed in our original rule (86 FR 52826), this activity coincides 
with the original rule's effective dates and requires the same safety 
zone. Due to the nature of the work and susceptibility to rescheduling 
due to weather, equipment readiness, material availability or other 
issues resulting in construction delays, the Coast Guard is amending 
the regulatory text of the regulation to state that the exact dates and 
times of enforcement will be announced to the public by Broadcast 
Notice to Mariners, Local Notice to Mariners or other appropriate 
means. All other aspects of the original rule remain unchanged other 
than the correction of a scrivener's error in the title to paragraph 
(g).
    This amended rule establishes a temporary safety zone from 7 a.m. 
on November 2, 2021, through 8 p.m. December 31, 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.
    The bridge owner will 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.
    While the safety zone is effective from 7 a.m. on November 2, 2021, 
through 8 p.m. December 31, 2021, in most circumstances, the safety 
zone will be enforced 7 a.m. until 8 p.m., daily, Monday through 
Saturday. There will be periods of continuous 24/7 enforcement due to 
the nature of certain construction activites. The public will be 
advised of these periods through Notice to Mariners and other 
appropriate means, at least 2-5 days in advance.
    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).

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 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 60 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 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard received no comments from the Small Business 
Administration on this rulemaking. 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 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,

[[Page 61070]]

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 
temporary safety zone lasting 60 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 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) Enforcement period. (1) The section will be enforced from 7 
a.m. on November 2, 2021, through 8 p.m. December 31, 2021.
    (2) The public will be advised of the status of the safety zone, to 
include dates and times, by Broadcast Notice to

[[Page 61071]]

Mariners, Local Notice to Mariners or other appropriate means.

    Dated: November 1, 2021.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Sector Maryland-National 
Capital Region.
[FR Doc. 2021-24271 Filed 11-4-21; 8:45 am]
BILLING CODE 9110-04-P