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[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Rules and Regulations]
[Pages 33512-33514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13598]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0225]
RIN 1625-AA00

Safety Zone, PNSY Entrance Structure Heavy Lift Project--
Piscataqua River, Portsmouth, NH

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 Piscataqua River, Portsmouth, NH. This action is 
necessary to provide for the safety of persons, property, and the 
marine environment from the potential safety hazards associated with 
the construction and heavy lift operations at the Portsmouth Naval 
Shipyard Dry Dock No. 1. When enforced, this rule will prohibit persons 
and vessels from entering into the safety zone unless authorized by the 
Captain of the Port Northern New England or a designated 
representative.

DATES: This rule is effective without actual notice from June 25, 2021, 
through August 31, 2021. For the purposes of enforcement, actual notice 
will be used from June 16, 2021, until June 25, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://

[[Page 33513]]

www.regulations.gov, type USCG-2021-0225 in the ``SEARCH'' box and 
click ``SEARCH.'' Click on Open Docket Folder on the line associated 
with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Shaun Doyle, Sector Northern New England Waterways 
Management Division, U.S. Coast Guard; telephone 207-347-5015, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NAD 83 North American Datum of 1983
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port Sector Northern New England

II. Background Information and Regulatory History

    On April 6, 2021, a construction company contracted by Portsmouth 
Naval Shipyard (PNSY) notified the Coast Guard that in mid-May they 
intend to tow the Weeks 2701 barge with the new PNSY Dry Dock No.1 
Superflood Basin entrance structure, commonly referred to as the 
``structure,'' aboard to PNSY for final lifting and setting. The 
structure is a 5500 ton pre-fabricated concrete caisson. The 
construction is critical to the PNSY Superflood Basin project. The lift 
and placement of the structure will take approximately two tide cycles 
and requires no wake or swell from passing vessels or weather during 
critical and sensitive lifting operations. The heavy lift is critical 
to the success of the PNSY Superflood Basin project and the future of 
PNSY operations. The heavy lift will be north of the federal navigation 
channel in the area of PNSY Berth No. 1.
    The Coast Guard is issuing this temporary final 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 publishing an NPRM would be 
impracticable. A delay or cancellation of the currently ongoing PNSY 
Superflood Basin project in order to accommodate a full notice and 
comment period would delay necessary operations, result in increased 
costs, and delay the date when the PNSY Superflood Basin is expected to 
open for critical naval operations. For these reasons, the Coast Guard 
finds it impracticable to delay this regulation for purposes of a 
comment period.
    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 for the same reasons specified above.

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 Captain of the Port Sector 
Northern New England (COTP) has determined that potential hazards 
associated with the heavy lift will be a safety concern for anyone 
transiting the Piscataqua River in the vicinity of the PNSY Berth 1. 
This rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone while during 
the heavy lift.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from June 16, 2021, 
through August 31, 2021. The safety zone will cover all navigable 
waters within 350 yards of position 43[deg]04'50.38'' N, 
070[deg]44'39.62'' W (NAD83) of the Piscataqua River, Portsmouth, NH, 
in the vicinity of PNSY Berth No. 1. The size and duration of this 
safety zone is intended to ensure the safety of waterway users on these 
navigable waters during heavy lift operations.
    We anticipate enforcing the safety zone during the heavy lift 
operations for installation of the structure during three high tide 
cycles sometime from July 1, 2021, through July 4, 2021. No vessel may 
enter, transit through, anchor in, or remain in the zone during periods 
of enforcment enforcement unless permission is obtained from the COTP 
or a designated representative. Persons or vessels seeking to enter the 
safety zones must request permission from the COTP or a designated 
representative on VHF-FM channel 16. If permission is granted, all 
persons and vessels shall comply with the instructions of the COTP or 
designated representative. The COTP or a designated representative will 
inform the public of the enforcement times and date for this safety 
zone through Broadcast Notices to Mariners (BNMs), Local Notices to 
Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as 
appropriate. The Coast Guard is publishing this rule to be effective 
through August 31, 2021 in case the project is delayed due to 
unforeseen circumstances.

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 following 
reasons: (1) The safety zone only impacts a small designated area of 
the Piscataqua River, Portsmouth, NH, (2) the zone will only be 
enforced during actual lift operations, (3) persons or vessels desiring 
to enter the safety zone may do so with permission from the COTP or a 
designated representative.

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

[[Page 33514]]

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 approximately 24 to 36 hours that will prohibit 
entry within 350 yards of position 43[deg]04'50.38'' N, 
070[deg]44'39.62'' W (NAD83), Piscataqua River, Portsmouth, NH, during 
heavy lift operations in Berth No. 1 at PNSY. It is categorically 
excluded from further review under paragraph L60a 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.T01-0225 to read as follows:

Sec.  165.T01-0225  Safety Zone; Safety Zone, PNSY Entrance Structure 
Heavy Lift Project--Piscataqua River, Portsmouth, NH.

    (a) Location. The following area is a safety zone: All navigable 
waters within a 350-yards radius of position 43[deg]04'50.38'' N, 
070[deg]44'39.62'' W (NAD83) on Piscataqua River, Portsmouth, NH.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, 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 
Northern New England in the enforcement of the safety zone.
    (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 VHF-FM channel 16 or (207) 767-0303 (Sector Northern 
New England Command Center). 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 period[s]. This section will be enforced June 16, 
2021, through August 31, 2021, during active heavy lift operations and 
other instances which may cause a hazard to navigation, as well as when 
deemed necessary by the COTP, Sector Northern New England.

    Dated: June 11, 2021.
B.J. LeFebvre,
Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New 
England.
[FR Doc. 2021-13598 Filed 6-24-21; 8:45 am]
BILLING CODE 9110-04-P
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