Rule2023-09300
Safety Zone; Potomac River, Between Charles County, MD and King George County, VA
Primary source
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Published
May 2, 2023
Effective
May 2, 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 May 1, 2023 through June 9, 2023. This rule will 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 84 (Tuesday, May 2, 2023)</title>
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[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Rules and Regulations]
[Pages 27407-27410]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09300]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0290]
RIN 1625-AA00
Safety Zone; Potomac River, Between Charles County, MD and King
George County, VA
AGENCY: Coast Guard, Department of Homeland Security (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 May 1, 2023 through June
9, 2023. This rule will 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 without actual notice from May 2, 2023,
through June 9, 2023. For the purposes of enforcement, actual notice
will be used from May 1, 2023, until May 2, 2023.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-
2023-0290 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 BM1 Michael Klopp, Sector Maryland-NCR, Waterways
Management Division, U.S. Coast Guard: telephone 410-576-2674, email
<a href="/cdn-cgi/l/email-protection#93ded7ddd0c1c4f2e7f6e1e4f2eae0d3e6e0f0f4bdfefaff"><span class="__cf_email__" data-cfemail="6a272e2429383d0b1e0f181d0b13192a1f19090d44070306">[email protected]</span></a>.
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
On April 13, 2023, Skanska-Corman-McLean, Joint Venture, notified
the Coast Guard that the company will be conducting bridge demolition
operations at the old Governor Harry W. Nice/Senator Thomas ``Mac''
Middleton Memorial (US-301) Bridge. The work described by the
contractor requires the use of explosives, and debris removal and
hydrographic surveying equipment. During explosive detonation periods,
there can be no marine traffic transiting near or around the bridge for
safety reasons.
[[Page 27408]]
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 it is impracticable and contrary to
the public interest. Demolition operations involving explosives will
occur at the old Governor Harry W. Nice/Senator Thomas ``Mac''
Middleton Memorial (US-301) Bridge across the Potomac River and
immediate action is needed to respond to the potential safety hazards
associated with bridge demolition. Hazards from the demolition
operations include low-hanging or falling ropes, cables, large piles
and cement cast portions, dangerous projectiles, and/or other debris.
We must establish this safety zone by May 1, 2023, to guard against
these hazards.
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 and contrary to the public interest
because immediate action is needed to respond to the potential safety
hazards associated with demolition operations at 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 (COTP) has determined that potential
hazards associated with bridge demolition starting May 1, 2023, will be
a safety concern for anyone near the old Governor Harry W. Nice/Senator
Thomas ``Mac'' Middleton Memorial (US-301) Bridge demolition 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 demolished.
IV. Discussion of the Rule
The COTP is establishing a safety zone from 12:01 a.m. on May 1,
2023, to 11:59 p.m. on June 9, 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]21'38.74'' N,
077[deg]00'52.99'' W, thence east to 38[deg]21'52.67'' N,
076[deg]59'2.51'' W, thence south along the shoreline to
38[deg]21'43.45'' N, 076[deg]58'56.64.22'' W, thence west to
38[deg]21'28.91'' N, 077[deg]00'52.81'' W, and thence north along the
shoreline back to the beginning point, located in 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 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 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 3,000 yards in width and 350 yards in length. This safety
zone would impact a small designated area of the Potomac River for 40
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. During explosive
detonations, the Coast Guard will have law enforcement assets on-scene
to enforce the safety zone immediately before, during and after
explosive detonations. This safety zone is established outside the
normal recreational boating season for this area, which occurs during
the summer season. 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 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
[[Page 27409]]
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 40 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 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, 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.T05-0290 to read as follows:
Sec. 165.T05-0290 Safety Zone; Potomac River, Between Charles County,
MD and King George County, VA.
(a) Location. The following areas are safety zones. These
coordinates are based on North American Datum of 1983 (NAD 83).
(1) Area 1. All navigable waters of the Potomac River, encompassed
by a line connecting the following points beginning at
38[deg]21'38.74'' N, 077[deg]00'52.99'' W, thence east to
38[deg]21'52.67'' N, 076[deg]59'2.51'' W, thence south along the
shoreline to 38[deg]21'43.45'' N, 076[deg]58'56.64.22'' W, thence west
to 38[deg]21'28.91'' N, 077[deg]00'52.81'' W, and thence north along
the shoreline back to the beginning point, located in 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 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 the safety zone areas in
paragraph (a) of this section must first contact the Skanska-Corman-
McLean, Joint Venture designated representative, the on-site project
manager by telephone number 781-953-1465 or on Marine Band Radio
[[Page 27410]]
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 May 1, 2023, to 11:59 p.m. on June 9, 2023.
Dated: April 27, 2023.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Maryland-
National Capital Region.
[FR Doc. 2023-09300 Filed 5-1-23; 8:45 am]
BILLING CODE 9110-04-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.