[Federal Register Volume 88, Number 1 (Tuesday, January 3, 2023)]
[Proposed Rules]
[Pages 35-38]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28497]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0895]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking; re-opening of 
public comment period.

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SUMMARY: On November 8, 2022, the Coast Guard published a notice of 
proposed rulemaking to establish a temporary safety zone from February 
1, 2023 through February 14, 2023, to provide for the safety of life on 
certain waters of the Potomac River during demolition operations at the 
old Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial 
(US-301) Bridge. The Coast Guard is publishing this revised notice of 
proposed rulemaking because the bridge contractor has changed the 
scheduled dates and location sequence in which the explosives 
demolition will occur. We invite your comments on this proposed 
rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before February 2, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2022-0895 using the Federal Decision Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

[[Page 36]]


FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email MST2 Courtney Perry, Sector 
Maryland-NCR, Waterways Management Division, U.S. Coast Guard: 
telephone 410-576-2596, 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. Background, Purpose, and Legal Basis

    The Coast Guard published an NPRM on November 8, 2022 (87 FR 
67430), proposing to establish a safety zone for demolition operations 
at the old Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton 
Memorial (US-301) Bridge on the Potomac River, from 12:01 a.m. on 
February 1, 2023, to 11:59 p.m. on February 14, 2023. After publication 
of that notice, the Coast Guard was informed by the bridge contractor 
that the scheduled dates and location sequence in which the explosives 
demolision will occur has been changed. Instead of using explosives to 
demolish the old bridge from February 1, 2023 through February 14, 
2023, the bridge contractor has decided to start to use explosives to 
demolish the old bridge over navigable waters from March 1, 2023 
through March 17, 2023. Therefore, the dates of the safety zone is 
changed. Additionally, instead of using explosives to demolish the 
segment of the old bridge over waters that include the steel truss 
sections between Piers 13 and 16 (including the main span over the 
Federal navigation channel) first in the explosives demolition 
sequence, the bridge contractor has decided to start to use explosives 
to demolish the segment of the old bridge over waters that include the 
steel truss sections between Piers 8 and 13 (outside and to the west of 
the Federal navigation channel) and conduct associated debris removal 
and hydrographic surveying equipment. Therefore, the location of Area 1 
of the safety zone is changed. These are the only changes from the 
original proposal published on November 8. We are issuing this 
supplemental proposal to amend the safety zone to account for the 
change in the scheduled dates, and the location of Area 1 of the safety 
zone, and to re-open the comment period to account for this change.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters outside and to the west of the Federal 
navigation channel at the old Governor Harry W. Nice/Senator Thomas 
``Mac'' Middleton Memorial (US-301) Bridge before, during, and after 
the scheduled event. 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

    The COTP is proposing to establish a safety zone from 12:01 a.m. on 
March 1, 2023, to 11:59 p.m. on March 17, 2023. The safety zone would 
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]21'48.14'' N, 
076[deg]59'40.45'' W, thence south to 38[deg]21'37.90'' N, 
076[deg]59'38.25'' W, thence west to 38[deg]21'35.18'' N, 
076[deg]59'59.06'' W, thence north to 38[deg]21'45.57'' N, 
077[deg]00'01.84'' W, and east back to the beginning point, located 
between Charles County, MD, and 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 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). The regulatory text we are proposing appears at the end of this 
document.

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 size, location 
and time of year of the safety zone. The temporary safety zone is 
approximately 600 yards in width and 400 yards in length. This safety 
zone would impact a small designated area of the Potomac River for 17 
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. This safety zone would be 
established outside the normal recreational boating season for this 
area, which occurs during the summer season. Additionally, vessel 
traffic, including recreational vessels, not required to use the 
navigation channel would 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 would 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

[[Page 37]]

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 
safety zone 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 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 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. 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 a safety 
zone lasting 17 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(a) of Appendix A, Table 1 of 
DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary 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. 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 https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2022-0895 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 
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 https://www.regulations.gov 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 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 is 
proposing to amend 33 CFR part 165 as follows:

[[Page 38]]

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.T05-0895 to read as follows:


Sec.  165.T05-0895   Safety Zone; Potomac River, Between Charles 
County, MD and King George County, VA.

    (a) Location. The following areas are a safety zone: These 
coordinates are based on datum NAD 83.
    (1) Area 1. All navigable waters of the Potomac River, encompassed 
by a line connecting the following points beginning at 
38[deg]21'48.14'' N, 076[deg]59'40.45'' W, thence south to 
38[deg]21'37.90'' N, 076[deg]59'38.25'' W, thence west to 
38[deg]21'35.18'' N, 076[deg]59'59.06'' W, thence north to 
38[deg]21'45.57'' N, 077[deg]00'01.84'' W, and east back to the 
beginning point, located between Charles County, MD, and 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 Captain of the 
Port Maryland-National Capital Region (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 these safety zone areas 
must first contact the Skanska-Corman-McLean, Joint Venture designated 
representative, the on-site project manager by telephone number 785-
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).
    (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 March 1, 2023, to 11:59 p.m. on March 17, 2023.

    Dated: December 27, 2022.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2022-28497 Filed 12-30-22; 8:45 am]
BILLING CODE 9110-04-P