[Federal Register Volume 88, Number 45 (Wednesday, March 8, 2023)]
[Rules and Regulations]
[Pages 14262-14265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04719]


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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: 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 March 13, 2023 through 
March 29, 2023. This proposed rulemaking would 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 12:01 a.m., March 13, 2023 through 
11:59 p.m., March 29, 2023.

ADDRESSES: To view documents mentioned in this preamble as being

[[Page 14263]]

available in the docket, go to https://www.regulations.gov, type USCG-
2022-0895 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 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 Information and Regulatory History

    Skanska-Corman-McLean, Joint Venture notified the Coast Guard that 
it will be conducting demolition of the old Governor Harry W. Nice/
Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge. Although the 
original notice provided a different set of dates, the demolition is 
now set to occur from 12:01 a.m. on March 13, 2023 to 11:59 p.m. on 
March 29, 2023. The bridge is located on the Potomac River, at mile 
43.3, between Charles County, MD and King George County, VA. Demolition 
of the segment of the old bridge over waters that include the steel 
truss sections between Piers 7 and 13 (including the main span over the 
Federal navigational channel) requires the use of explosives, and 
debris removal and hydrographic surveying equipment.
    In response to information originally provided by the demolition 
contractor, on November 8, 2022, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled Safety Zone; Potomac River, Between 
Charles County, MD and King George County, VA (87 FR 67430). The NPRM 
indicated that the safety zone would occur from February 1, 2023 
through February 17, 2023, stated why we issued the NPRM, and invited 
comments on our proposed regulatory action related to this demolition. 
During the comment period that ended December 8, 2022, we received 3 
comments. A fourth comment was received on December 9, 2022 from the 
demolition contractor that prompted the Coast Guard to publish a 
Supplemental NPRM (SNPRM) indicating that the safety zone would occur 
from March 1, 2023 through March 17, 2023, and to the west of the 
Federal channel. During the comment period for the SNPRM, a fifth 
comment was received on January 26, 2023 from the demolition contractor 
indicating that the demolition work would occur between March 13, 2023 
and March 29, 2023, the dates used in this Temporary Final Rule.
    On February 17, 2023, the demolition contractor notified the Coast 
Guard that they were requesting traffic to be halted in the area 
originally identified and along the Federal channel, as well, for brief 
periods (during actual detonations) for safety reasons. In response, we 
are promulgating this final regulation to include an ``Area 3'' which 
will encompass the entire Federal channel. This ``Area 3'' will only be 
enforced on one day in between March 13, 2023 and March 29, 2023, for a 
short duration with law enforcement assets on scene.
    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 of the final dates and areas in the Federal Register. 
Delaying the effective date of this rule to provide notice of changes 
necessitated by changes in the demolition contractor's actual plans 
would be impracticable because immediate action is needed to respond to 
the potential safety hazards associated with explosive demolition of 
the 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 Maryland-National Capital Region (COTP) 
has determined that potential hazards associated the demolition and 
removal of the old Governor Harry W. Nice/Senator Thomas ``Mac'' 
Middleton Memorial (US-301) Bridge would be a safety concern for anyone 
within or near the Federal navigation channel. The purpose of this rule 
is to ensure safety of vessels and the navigable waters within or near 
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.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received 4 comments on our NPRM published 
November 8, 2022 as well as 1 more comment following the SNPRM 
published January 3, 2023. Three comments expressed support of the 
rulemaking and the Coast Guard concurs. Two comments were submitted by 
the demolition contractor requesting changes to the proposed rule. The 
first comment submitted from the demolition contractor was to inform 
the Coast Guard that there had been a change to the scheduled date and 
location sequence in which the demolition will occur. The second 
comment submitted from the demolition contractor was noted that the 
portion of the bridge to be demolished is between Pier 7 and Pier 13, 
and not Pier 8 and Pier 13 as initially described. Additionally, the 
commenter indicated that the demolition will occur on March 13, 2023 
through March 29, 2023 rather than March 1, 2023 through March 17, 
2023. We confirmed this updated information with the demolition 
contractor and have revised the regulatory text to reflect these 
changes.
    This rule establishes a safety zone from 12:01 a.m. on March 13, 
2023, to 11:59 p.m. on March 29, 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]21'51.57'' N, 
076[deg]59'14.53'' W, thence south to 38[deg]21'41.35'' N, 
076[deg]59'12.33'' W, thence west to 38[deg]21'37.90'' N, 
076[deg]59'38.25'' W, thence north to 38[deg]21'48.14'' N, 
076[deg]59'40.45'' 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.
    Area 3. 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'', thence west to 38[deg]21'41.40'' N, 
076[deg]59'22.80'' W, thence north to 38[deg]21'51.00'' N, 
076[deg]59'22.80'' W, and east back to the beginning point, located 
between Charles County, MD and King George County, VA.
    The duration of the zone is intended to ensure the safety of the 
vessels and these navigable waters before, during, and after the 
scheduled demolition and debris removal. Except for the 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. The term designated representative also 
includes an employee or contractor of Skanska-Corman-McLean, Joint 
Venture for the

[[Page 14264]]

sole purpose 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, in accordance with 33 CFR 165.7(a). Such means of notification 
will 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 and 46 U.S.C. 70052.

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 1200 yards in width and 350 yards in length. This safety 
zone will 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 will 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 
navigational 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 Notice 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 
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 
safety zone lasting 17 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.

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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.T05-0895 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 datumNAD 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.
    (3) Area 3. 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'', thence west to 
38[deg]21'41.40'' N, 076[deg]59'22.80'' W, thence north to 
38[deg]21'51.00'' N, 076[deg]59'22.80'' W, and east back to the 
beginning point, located between Charles County, MD and King George 
County, VA.
    (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-Corma-McLean, Joint Venture for the sole purposes of 
designating and establishing safe transit corridors, to permis 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 13, 2023, to 11:59 p.m. on March 29, 2023.

    Dated: March 2, 2023.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2023-04719 Filed 3-7-23; 8:45 am]
BILLING CODE 9110-04-P