[Federal Register Volume 86, Number 162 (Wednesday, August 25, 2021)]
[Proposed Rules]
[Pages 47433-47435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17891]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0344]
RIN 1625-AA00


Safety Zone; Piscataqua River Turning Basin Dredge Project, 
Portsmouth, NH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish two temporary safety 
zones for the navigable waters of the Piscataqua River in Portsmouth 
Harbor. The first safety zone will be a 100-yard radius around any 
vessel, barge, or dredging equipment engaged in dredging operations. 
The second safety zone will be a 500-yard radius around any vessel, 
barge, or dredging equipment engaged in blasting operations and any 
blasting worksites. The safety zones are necessary to protect persons 
and vessels from hazards associated with dredging, drilling, and 
blasting operations for overall widening of the uppermost turning basin 
of the Piscataqua River. This proposed rulemaking would prohibit 
persons and vessels from being in the safety zone unless authorized by 
the Captain of the Port Northern New England 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 September 24, 2021.

ADDRESSES: You may submit comments identified by docket number USCG-
2021-0344 using the Federal eRulemaking 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 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
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port Northern New England

II. Background, Purpose, and Legal Basis

    On February 12, 2021, the U.S. Army Corps of Engineers notified the 
Coast Guard of plans to fund dredging operations on the uppermost 
turning basin of the Piscataqua River in Portsmouth Harbor. The project 
consists of widening the uppermost turning basin of the Piscataqua 
River from 800 feet to 1,200 feet to improve navigation maneuverability 
and safety.
    The project includes dredging approximately 12-14 million cubic 
yards of silt, blue clay, till and weathered rock from the uppermost 
turning basin of the Piscataqua River in Portsmouth Harbor. The project 
will include mechanical dredging, drilling, and blasting operations. 
The extent of drilling and blasting operations will not be known until 
the top material has been removed and contractors can locate hard rock 
spots. The Captain of the Port Northern New England (COTP) has 
determined that potential hazards associated with dredging operations 
would be a safety concern for anyone within a 100-yard radius around 
any vessel, barge, or dredging equipment engaged in dredging 
operations. Additionally, the COTP has determined that potential 
hazards associated with the explosives to be used in this operation 
would be a safety concern for anyone within a 500-yard radius around 
any vessel, barge, or dredging equipment engaged in blasting operations 
and any blasting worksites. The Coast Guard is proposing this rule to 
be effective, and enforceable, from October 15, 2021, through April 15, 
2022. If the project is completed prior to April 15, 2022, enforcement 
of the safety zone will be terminated and notice given via Broadcast 
Notice to Mariners, Local Notice to Mariners, or both.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within a 100-yard radius around any vessel, 
barge, or dredging equipment engaged in dredging operations and within 
a 500-yard radius around any vessel, barge, or dredging equipment 
engaged in blasting operations and any blasting worksites. The Coast 
Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 
(previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    The COTP is proposing to establish two safety zones from October 
15, 2021, through April 15, 2022. The first safety zone will be a 100-
yard radius around any vessel, barge, or dredging equipment actively 
engaged in dredging operations. The second safety zone will be a 500-
yard radius around any vessel, barge, or dredging equipment engaged in 
blasting operations and any blasting worksites. The 500-yard safety 
zone will be enforced during active blasting operations and will be 
suspended once successful detonation has been confirmed and blasting 
operations have been secured. The Coast Guard will notify the public 
and local mariners of the 500-yard safety zone through appropriate 
means, which may include, but are not limited to, publication in the 
Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM 
marine channel 16 in advance of any enforcement. No vessel or person 
would be permitted to enter the safety zone without obtaining 
permission from the COTP or a designated representative. 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

[[Page 47434]]

``significant regulatory action,'' under Executive Order 12866. 
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, duration, time-of-day and time-of-year of the safety zone. 
The safety zones will be enforced during periods of active dredging or 
blasting operations from October 15, 2021, through April 15, 2022. The 
500-yard radius safety zone around any vessel, barge, or dredging 
equipment engaged in blasting operations and any blasting worksites 
will only be enforced when blasting operations are conducted for short 
durations. Once blasting operations have been secured, vessel traffic 
would be able to transit around the 100-yard radius safety zone around 
any vessel, barge, or dredging equipment actively engaged in dredging 
operations. Dredging vessel(s) conducting operations will accommodate 
necessary commerce and movement of cargo through daily coordination 
with U.S. Army Corps of Engineers, contractors, Portsmouth Pilots, and 
U.S. Coast Guard. Proper public notice of enforcement will be given 
through appropriate means, which may include, but are not limited to, 
publication in the Local Notice to Mariners and Broadcast Notice to 
Mariners via VHF-FM marine channel 16.

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 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 rule 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 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 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 effects of this 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 
establishing two safety zones near the uppermost turning basin of the 
Piscataqua River in Portsmouth Harbor that will be enforced 
periodically from October 15, 2021, through April 15, 2022, that 
prohibits entry within a 100-yard radius around any vessel, barge, or 
dredging equipment engaged in dredging operations, and within a 500-
yard radius around any vessel, barge, or dredging equipment engaged in 
blasting operations and any blasting worksites. 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,

[[Page 47435]]

indicate the specific section of this document to which each comment 
applies, and provide a reason for each suggestion or recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, call or email the person 
in the FOR FURTHER INFORMATION CONTACT section of this document for 
alternate instructions.
    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 in response to this 
document, see DHS's eRulemaking System of Records notice (85 FR 14226, 
March 11, 2020).
    Documents mentioned in this NPRM as being available in the docket, 
and public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's 
instructions. 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.

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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1.

0
2. Add Sec.  165.T01-0344 to read as follows:


Sec.  165.T01-0344   Safety Zone; Piscataqua River Turning Basin Dredge 
Project, Portsmouth, NH.

    (a) Locations. The following areas are a safety zone: (1) Safety 
zone 1. All navigable waters of the Piscataqua River, from surface to 
bottom, within a 100-yard radius around any vessel, barge, or dredging 
equipment engaged in dredging operations.
    (2) Safety zone 2. All navigable waters of the Piscataqua River, 
from surface to bottom, within a 500-yard radius around any vessel, 
barge, or dredging equipment engaged in blasting operations and any 
blasting worksites.
    (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 
Captain of the Port Northern New England (COTP) 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 
Designated Representative via VHF-FM marine channel 16 or by contacting 
the Coast Guard Sector Northern New England Command Center at (207) 
741-5465. 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. This section is effective from October 15, 
2021, through April 15, 2022, but will only be enforced while dredging 
or blasting operations are in progress. The Coast Guard will utilize 
Broadcast Notice to Mariners and Local Notice to Mariners to notify the 
public of the time and duration that these safety zones will be 
enforced.

    Dated: August 16, 2021.
A.E. Florentino,
Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New 
England.
[FR Doc. 2021-17891 Filed 8-24-21; 8:45 am]
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