[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Rules and Regulations]
[Pages 76669-76671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24561]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0795]
RIN 1625-AA00


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

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 November 8, 2023 through 
January 30, 2024. This regulation prohibits 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 from November 8, 2023, through January 
30, 2024.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0795 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 about this rule, 
call or email LCDR Kate Newkirk, 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
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, which will 
occur from 12:01 a.m. on November 8, 2023, to 11:59 p.m. on January 30, 
2024. The bridge is located on the Potomac River, at mile 43.3, between 
Charles County, MD and King George County, VA. The segment of the old 
bridge over waters that include the bridge piers sections between Piers 
14 and the east riverbank of the Potomac River requires the use of 
explosives, and debris removal and hydrographic surveying equipment. 
Marine equipment, including barges, positioned in the Potomac River 
will be used to support the bridge demolition and debris removal 
operation. This operation also requires the use of a temporary 
commercial mooring buoy in the Potomac River south of the old bridge 
where the explosives barge will be kept. Hazards from the demolition 
and debris removal work include accidental discharge of explosives, 
dangerous projectiles, hanging ropes or cables, and falling objects or 
debris. In response, on October 12, 2023, the Coast Guard published a 
notice of proposed rulemaking (NPRM) titled Safety Zone; Potomac River, 
Between Charles County, MD and King George County, VA (USCG-2023-0795). 
During the comment period that ended October 27, 2023, we received no 
comments.
    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 
this rule would be impracticable because immediate action is needed to 
respond to the potential safety hazards associated with demolition of 
the old Governor Harry W. Nice/Senator Thomas ``Mac'' Middleton 
Memorial (US-301) 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 Sector Maryland-National Capital Region 
(COTP) has determined that potential hazards associated with 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 project area.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published 
October 12, 2023. There are no changes in the regulatory text of this 
rule from the proposed rule in the NPRM.
    This rule establishes a safety zone from 12:01 a.m. on November 8, 
2023, to 11:59 p.m. on January 30, 2024. The safety zone would cover 
the following areas:

[[Page 76670]]

    Area 1. All navigable waters of the Potomac River, encompassed by a 
line connecting the following points beginning at 38[deg]21'49.10'' N, 
076[deg]59'32.46'' W, thence south to 38[deg]21'40.04'' N, 
076[deg]59'30.62'' W, thence east to 38[deg]21'43.52'' N, 
076[deg]59'15.22'' W, thence south along the shoreline to 
38[deg]21'52.49'' N, 076[deg]58'59.70'' W, and west 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 and 46 U.S.C. 70052 . The 
regulatory text we are proposing appears at the end of this document.

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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
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, duration and time of year of the regulated area. The 
temporary safety zone comprises two separate geographic areas which 
total a maximum of approximately 900 yards in width and 350 yards in 
length. This safety zone would impact a small, designated area of the 
Potomac River for a maximum 84 total days, but we anticipate that there 
would be no vessels that are unable to conduct business because of the 
safety zone. 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 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. 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 on days it is being enforced.

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

[[Page 76671]]

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 84 total days that would 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. 01.3.


0
2. Add Sec.  165.T05-0145 to read as follows:


Sec.  165.T05-0145  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]21'49.10'' N, 076[deg]59'32.46'' W, thence south to 
38[deg]21'40.04'' N, 076[deg]59'30.62'' W, thence east to 
38[deg]21'43.52'' N, 076[deg]59'15.22'' W, thence south along the 
shoreline to 38[deg]21'52.49'' N, 076[deg]58'59.70'' W, and west 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 wishing 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 to request permission. 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 in effect, and subject 
to enforcement, from 12:01 a.m. on November 8, 2023, to 11:59 p.m. on 
January 30, 2023.

    Dated: November 1, 2023.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2023-24561 Filed 11-6-23; 8:45 am]
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