[Federal Register Volume 88, Number 196 (Thursday, October 12, 2023)]
[Proposed Rules]
[Pages 70613-70616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22545]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0795]
RIN 1-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish 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 proposed rulemaking would prohibit 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. We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before October 27, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0795 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.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email LCDR Kate Newkirk, Sector Maryland-
NCR, Waterways Management Division, U.S. Coast Guard: telephone 410-
576-2519, email <a href="/cdn-cgi/l/email-protection#b8f5fcf6fbeaefd9ccddcacfd9c1cbf8cdcbdbdf96d5d1d4"><span class="__cf_email__" data-cfemail="460b02080514112732233431273f350633352521682b2f2a">[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, Purpose, and Legal Basis

    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. The Captain of the Port, 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.
    The purpose of this rulemaking is to ensure the 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. 
The Coast Guard is proposing this rulemaking under authority in 46 
U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone from 12:01 a.m. on 
November 8, 2023, to 11:59 p.m. on

[[Page 70614]]

January 30, 2024. 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]21'49.10'' 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.

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, as amended by 
Executive Order 14094 (Modernizing Regulatory Review). 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 
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 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 rulemaking 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

[[Page 70615]]

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 84 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-2023-0795 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. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    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:

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.T05-0145 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

[[Page 70616]]

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 subject to enforcement 
from 12:01 a.m. on November 08, 2023, to 11:59 p.m. on January 30, 
2023.

    Dated: October 05, 2023.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2023-22545 Filed 10-11-23; 8:45 am]
BILLING CODE 9110-04-P


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