[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Rules and Regulations]
[Pages 46970-46972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17978]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0650]
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 in the Potomac River. This action is necessary to 
provide for the safety of persons, property, and the marine environment 
from the potential safety hazards associated with construction 
operations at the new Governor Harry W. Nice/Senator Thomas ``Mac'' 
Middleton Memorial (US-301) Bridge, which will occur from 7 a.m. on 
August 23, 2021, through 8 p.m. on September 11, 2021. 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 from 7 a.m. on August 23, 2021, through 8 
p.m. on September 11, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0650 in the ``SEARCH'' box and click ``SEARCH.'' Click on 
DOCUMENTS on the line associated with this rule below ``SEARCH''.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Ron Houck, Sector Maryland-NCR, Waterways Management 
Division, U.S. Coast Guard: telephone 410-576-2674, email 
<a href="/cdn-cgi/l/email-protection#87d5e8e9e6ebe3a9cba9cfe8f2e4ecc7f2f4e4e0a9eaeeeb"><span class="__cf_email__" data-cfemail="06546968676a62284a284e6973656d4673756561286b6f6a">[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

    On August 5, 2021, Skanska-Corman-McLean, Joint Venture, notified 
the Coast Guard that from 7 a.m. on August 23, 2021, to 8 p.m. on 
September 11, 2021, it will be setting 200-ton pre-cast fender ring 
elements at the new Governor Harry W. Nice/Senator Thomas ``Mac'' 
Middleton Memorial (US-301) Bridge at Pier 43, which is adjacent and to 
the west of the federal navigation channel. The operation requires the 
daily movement in, anchoring, and movement out of a large crane, as 
well as nighttime diver work. This operation will impede vessels 
requiring the use of the channel.
    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 doing so would be impracticable and 
contrary to the public interest. Construction operations involving 
simultaneous crane heavy lifts at the new Governor Harry W. Nice/
Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge must occur 
within the federal navigation channel. Immediate action is needed to 
respond to the potential safety hazards associated with bridge 
construction. Hazards from the construction 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 August 23, 2021, 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 construction operations at the new Governor 
Harry W. Nice/Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge 
conducted within the federal navigation channel.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP Maryland-National Capital 
Region has determined that potential hazards associated with bridge 
construction starting August 23, 2021, will be a safety concern for 
anyone within the federal navigation channel at the new Governor Harry 
W. Nice/Senator Thomas ``Mac'' Middleton Memorial (US-301) Bridge 
construction 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 constructed.

IV. Discussion of the Rule

    This rule establishes a safety zone from 7 a.m. on August 23, 2021, 
through 8 p.m. on September 11, 2021. The safety zone will cover all 
navigable waters of the Potomac River, encompassed by a line connecting 
the following points beginning at 38[deg]21'50.96'' N, 
076[deg]59'22.04'' W, thence south to 38[deg]21'43.08'' N, 
076[deg]59'20.55'' W, thence west to 38[deg]21'41.00'' N, 
076[deg]59'34.90'' W, thence north to

[[Page 46971]]

38[deg]21'48.90'' N, 076[deg]59'36.80'' W, and east back to the 
beginning point, located between Charles County, MD and King George 
County, VA. The regulated area is approximately 450 yards in width and 
270 yards in length.
    This regulation requires that the bridge owner post a sign facing 
the northern and southern approaches of the navigation channel labeled 
``BRIDGE WORK--DANGER--STAY AWAY'' affixed to the sides of the on-scene 
marine equipment and vessels operating within the area of the safety 
zone. This provides on-scene notice of the safety zone. This notice 
will consist of a diamond shaped sign (minimum 4 feet by 4 feet) with a 
3-inch orange retro reflective border. The word ``DANGER'' will be 10 
inch black block letters centered on the sign with the words ``BRIDGE 
WORK'' and ``STAY AWAY'' in 6 inch black block letters placed above and 
below the word ``DANGER,'' respectively, on a white background.
    The duration of the zone is intended to protect personnel, vessels, 
and the marine environment in these navigable waters while the tub 
sections are being set at the new Governor Harry W. Nice/Senator Thomas 
``Mac'' Middleton Memorial (US-301) Bridge at Pier 43, which is 
adjacent and to the west of the federal navigation channel. Except for 
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 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 may 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 (previously codified in 
33 U.S.C. 1232) and 46 U.S.C. 70052 (previously codified in 50 U.S.C. 
192).

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 size and duration 
of the safety zone. We anticipate that there will be no vessels that 
are unable to conduct business. Excursion vessels and commercial 
fishing vessels are not impacted by this rulemaking. Excusion 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. Vessel traffic 
not required to use the navigation channel will be able to safely 
transit around the safety zone. Such vessels may be able to transit to 
the east of the federal navigation channel, as similar vertical 
clearance and water depth exist under the next bridge span to the east. 
This safety zone will impact a small designated area of the Potomac 
River for 18 total enforcement days but coincides with the non-peak 
season for recreational boating.

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 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.

[[Page 46972]]

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 18 total 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. 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. 0170.1.

0
2. Add Sec.  165.T05-0650 to read as follows:


Sec.  165.T05-0650  Safety Zone; Potomac River, Between Charles County, 
MD and King George County, VA.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Potomac River, encompassed by a line connecting the 
following points beginning at 38[deg]21'50.96'' N, 076[deg]59'22.04'' 
W, thence south to 38[deg]21'43.08'' N, 076[deg]59'20.55'' W, thence 
west to 38[deg]21'41.00'' N, 076[deg]59'34.90'' W, thence north to 
38[deg]21'48.90'' N, 076[deg]59'36.80'' W, and east back to the 
beginning point, located between Charles County, MD and King George 
County, VA. These coordinates are based on datum NAD 83.
    (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.
    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, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by telephone number 410-576-2693 or on Marine Band Radio 
VHF-FM channel 16 (156.8 MHz). Those in the safety zone must comply 
with all lawful orders or directions given to them by the COTP or the 
COTP's designated representative.
    (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. This safety zone will be enforced during the 
period described in paragraph (f) of this section. A ``BRIDGE WORK--
DANGER--STAY AWAY'' sign facing the northern and southern approaches of 
the navigation channel will be posted onthe sides of the marine 
equipment on-scene within the location described in paragraph (a) of 
this section.
    (f) Enforcement period. This section will be enforced from 7 a.m. 
on August 23, 2021, through 8 p.m. on September 11, 2021.

    Dated: August 17, 2021.
David E. O'Connell,
Commander, U.S. Coast Guard, Captain of the Port Sector Maryland-
National Capital Region.
[FR Doc. 2021-17978 Filed 8-20-21; 8:45 am]
BILLING CODE 9110-04-P


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