Rule2023-04719
Safety Zone; Potomac River, Between Charles County, MD and King George County, VA
Primary source
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Published
March 8, 2023
Effective
March 13, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 45 (Wednesday, March 8, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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
<a href="/cdn-cgi/l/email-protection#a9e4ede7eafbfec8ddccdbdec8d0dae9dcdacace87c4c0c5"><span class="__cf_email__" data-cfemail="125f565c5140457366776065736b6152676171753c7f7b7e">[email protected]</span></a>.
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.
[[Page 14265]]
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
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