[Federal Register Volume 87, Number 110 (Wednesday, June 8, 2022)]
[Rules and Regulations]
[Pages 34781-34784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12319]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0330]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; effective date extension and request for 
comment.

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SUMMARY: The Coast Guard is is extending the duration of a temporary 
safety zone on 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, through July 1, 
2022. This rule prohibits 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: The effective period of 33 CFR 165.T05-0330, published at 87 FR 
28776 on May 11, 2022, which was set to expire at 8 p.m. on June 18, 
2022, is extended through 8 p.m. on July 1, 2022.

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    Comments and related material must be received on or before June 
21, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0330 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 Mr. Ron Houck, 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
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 May 11, 2022, the Coast Guard issued a final rule establishing a 
temporary safety zone on certain navigable waters of the Potomac River 
to protect persons and vessels during critical operations requiring a 
large crane within the federal navigation channel to lift and set 250-
ton pier protection fender ring precast segments adjacent to the 
federal navigation channel at the new Governor Harry W. Nice/Senator 
Thomas ``Mac'' Middleton Memorial (US-301) Bridge (87 FR 28776). The 
original rule runs through 8 p.m. on June 18, 2022. However, additional 
time is needed to conduct the critical heavy lift operations, and, as a 
result, the Coast Guard needs to extend the safety zone through 8 p.m. 
on July 1, 2022. 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 and contrary to the public interest. The Coast 
Guard was unable to publish an NPRM and hold a reasonable comment 
period for this rulemaking due to the emergent nature of the continuing 
critical bridge construction operations and required publication of 
this extension. Immediate action is needed to continue to protect 
persons and vessels from the hazards associated with carrying out large 
crane heavy lifts at the new Governor Harry W. Nice/Senator Thomas 
``Mac'' Middleton Memorial (US-301) Bridge that must occur within the 
federal navigation channel. It is impracticable and contrary to the 
public interest to publish an NPRM, because the extension needs to be 
in place by June 18, 2022. However, the Coast Guard is providing an 
opportunity to comment while the rule is in effect and may amend the 
rule after it becomes effective, if necessary.
    We are issuing this rule under 5 U.S.C. 553(d)(3), and in 
accordance with 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 continue 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 to be 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 there are 
potential hazards associated with critical bridge construction 
operations. The work is 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 the Rule

    This rule extends the effective dates of an established safety 
zone, originally effective May 16, 2022 through 8 p.m. on June 18, 
2022, through 8 p.m. on July 1, 2022. This extension makes no other 
changes to the original rule other than the end effective date. The 
safety zone includes 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 zone is approximately 450 yards in width and 270 yards 
in length. The extended duration of the zone is intended to protect 
personnel and the marine environment in these navigable waters while 
pier protection fender ring precast segments are lifted and set at the 
new Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial 
(US-301) Bridge. 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 Maryland-National Capital Region or a 
designated representative.
    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). Such means 
of notification will also include, but are not 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 (previously codified in 
33 U.S.C. 1232) and 46 U.S.C. 70052 (previously codified in 50 U.S.C. 
192).

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 of the safety 
zone. The temporary safety zone is approximately 450 yards in width and 
270 yards in length. This safety zone will impact a small designated 
area of the Potomac River for 13 days, but we anticipate that there 
will be no vessels that are unable to conduct business. Excursion 
vessels and commercial fishing vessels are not

[[Page 34783]]

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, including 
recreational vessels, 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 or the west of the federal navigation 
channel, as similar vertical clearance and water depth exist under the 
next bridge span to the east and west. 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 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, 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 13 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.

VI. 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-2022-0330 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 
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

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we will only post comments that address the topic of the 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 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. In Sec.  165.T05-0330, revise paragraph (e) to read as follows:


Sec.  165.T05-0330  Safety Zone; Potomac River, Between Charles County, 
MD and King George County, VA.

* * * * *
    (e) Enforcement period. The section will be enforced from 7 a.m. on 
May 16, 2022, through 8 p.m. on July 1, 2022.

    Dated: June 3, 2022.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Sector Maryland-National 
Capital Region.
[FR Doc. 2022-12319 Filed 6-7-22; 8:45 am]
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