[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 76997-76999]
[FR Doc No: 2023-24713]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0512]
RIN 1625-AA00

Safety Zone, Neuse River, New Bern, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
navigable waters of the Neuse River in New Bern, North Carolina. This
action is necessary to provide for the safety of life on these waters
during an aerobatic airshow on November 25, 2023. This rule prohibits
persons and vessels from being in the safety zone unless authorized by
the Captain of the Port (COTP) North Carolina or a designated
representative.

DATES: This rule is effective November 25, 2023 from 4 through 6 p.m.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0512 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 Chief Petty Officer Elvin Rodriguez, Waterways Management
Division, U.S. Coast Guard; telephone<PHONE_NUMBER>, 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

II. Background Information and Regulatory History

    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 would be impracticable to publish
an NPRM and consider comments without delaying promulgation of the rule
beyond November 25, 2023, the date of the air show, and it would be
contrary to the public interest to delay promulgation of the rule until
after the event occurs. The rule needs to be in effect by November 25,
2023, to protect persons and vessels from the hazards associated with
this event. Such hazards include the possibility of an aircraft
striking a vessel on the surface below the flight zone.
    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 to publish this rule 30 days prior to
the date of the event, and contrary to the public interest to delay
publication past that date because the rule must be in place to protect
persons and vessels from the hazards associated with this event on
November 25, 2023.

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 North Carolina (COTP) has determined
that potential hazards associated with the Thanksgiving Twilight Show,
scheduled for 4 through 6 p.m. on November 25, 2023, is a safety
concern for mariners during the time that aircraft perform aerobatic
maneuvers directly above the Neuse River. This rule is necessary to
protect personnel, vessels, and the marine environment from the hazards
associated with the airshow above this position of the Neuse River.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone on a portion of the
Neuse River on November 25, 2023, from 4 to 6 p.m. The rule will be
enforced for the duration of the event. The date and times of
enforcement will be broadcast locally over VHF-FM marine radio. The
safety zone will include all navigable waters of the Neuse River in New
Bern, North Carolina inside an area starting from approximate
positions: latitude 35[deg]06'55'' N, longitude 077[deg]02'04'' W, then
east to latitude 35[deg]07'06'' N, longitude 077[deg]01'27'' W, then
southeast to latitude 35[deg]06'49'' N, longitude 077[deg]01'12'' W,
then south to latitude 35[deg]06'08'' N, longitude 077[deg]01'18'' W,
then west to latitude 35[deg]06'02'' N, longitude 077[deg]01'57'' W,
then north to latitude 35[deg]06'32'' N, longitude 077[deg]01'54'' W,
then north to the point of origin then north to the point of origin,
for a total area of approximately 1 mile square.
    The airshow will consist of three separate performances and will
last a total approximately 2 hours. The event will begin roughly 20
minutes before sunset and will last until approximately 30 minutes
after sunset. All aircraft will remain at least 500 feet above the
ground. Public spectators will be allowed to view the event from the
waterway, however, for safety reasons, the aircraft will not perform if
there are any vessels inside the safety zone. The duration of this
safety zone is intended to protect participants and spectators on the
navigable waters of the Neuse River during the airshow. Vessels may
transit the area, so long as they remain outside the safety zone. No
vessel or person will be permitted to enter the safety zone without
obtaining permission from the COTP North Carolina or a designated
representative.

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 section 3(f) of Executive Order 12866, as
amended by Executive Order 14094 (Modernizing Regulatory Review).
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 duration of the safety zone. Vessel traffic will not be
allowed to enter or transit a portion of the Neuse River during the
airshow from 4 through 6 p.m. November 25, 2023. The Coast Guard will
transmit a Broadcast Notice to Mariners via VHF-FM marine channel 16
regarding the enforcement area. This rule allows vessels to request
permission to pass through the regulated area.

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.

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 2 hours that will prohibit entry within a 1 square
mile area of the Neuse River on November 25, 2023, from 4 to 6 p.m. 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, 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.T05-0512 to read as follows:

Sec.  165.T05-0512   Safety Zone; Neuse River, Airshow, New Bern, NC.

    (a) Location. The following area is a safety zone: all navigable
waters of the Neuse River in New Bern, North Carolina, inside an area
starting from approximate positions: latitude 35[deg]06'55'' N,
longitude 077[deg]02'04'' W, then east to latitude 35[deg]07'06'' N,
longitude 077[deg]01'27'' W, then southeast to latitude 35[deg]06'49''
N, longitude 077[deg]01'12'' W, then south to latitude 35[deg]06'08''
N, longitude 077[deg]01'18'' W, then west to latitude 35[deg]06'02'' N,
longitude 077[deg]01'57'' W, then north to latitude 35[deg]06'32'' N,
longitude 077[deg]01'54'' W, then north to the point of origin, for a
total area of approximately 1 mile square.
    (b) Definitions. As used in this section--
    Captain of the Port (COTP) means the Commander, Sector North
Carolina.
    Designated representative means a Coast Guard Patrol Commander,
including a Coast Guard commissioned, warrant, or petty officer
designated by the Captain of the Port North Carolina (COTP) for the
enforcement of the safety zone.
    (c) Regulations. (1) The general regulations governing safety zones
in Sec.  165.23 apply to the area described in paragraph (a) of this
section.
    (2) Entry into or remaining in this safety zone is prohibited
unless authorized by the COTP North Carolina or the COTP North
Carolina's designated representative. Unless permission to remain in
the zone has been granted by the COTP North Carolina or the COTP North
Carolina's designated representative, a vessel within this safety zone
must immediately depart the zone when this section becomes effective.
    (3) The Captain of the Port, North Carolina can be reached through
the Coast Guard Sector North Carolina Command Duty Officer, Wilmington,
North Carolina, at telephone number<PHONE_NUMBER>.
    (4) The Coast Guard and designated security vessels enforcing the
safety zone can be contacted on VHF-FM marine band radio channel 13
(165.65 MHz) and channel 16 (156.8 MHz).
    (d) Enforcement. 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 regulation will be enforced from 4
through 6 p.m. on November 25, 2023.

Timothy J. List,
Captain, U.S. Coast Guard, Captain of the Port Sector North Carolina.
[FR Doc. 2023-24713 Filed 11-7-23; 8:45 am]
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