[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Rules and Regulations]
[Pages 21164-21167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9497]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0256]
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 
waters of the Neuse River in support of the New Bern, North Carolina 
Tercentennial Celebration. All vessels are prohibited from transiting 
the zone except as specifically authorized by the Captain of the Port 
or his designated representative. The temporary safety zone is 
necessary to provide for the safety of the crews, spectators, and other 
users and vessels of the waterway during a Civil War naval bombardment 
reenactment.

DATES: This rule is effective from 11:30 a.m. through 8 p.m. on May 8, 
2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0256 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0256 in the 
``Keyword''

[[Page 21165]]

box, and then clicking ``Search.'' They are also available for 
inspection or copying at the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail CWO4 Stephen Lyons, Waterways Management 
Division Chief, Coast Guard Sector North Carolina; telephone (252) 247-
4525, e-mail [email protected]. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    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 insufficient notice was provided to 
the Coast Guard to publish an NPRM and because the Coast Guard must 
take immediate measures to ensure the safety of life and property on 
the navigable waters of the United States.
    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 would 
be contrary to public interest, since immediate action is needed to 
ensure the public's safety from the hazards associated with maneuvering 
deep draft sailing vessels in the limits of a narrow channel and the 
firing of black powder cannons during a Civil War naval bombardment 
reenactment.

Basis and Purpose

    The City of New Bern, North Carolina is sponsoring a Civil War 
naval bombardment reenactment on the waters of the Neuse River. The 
naval bombardment will include the 62' Skipjack Ada Mae, the 72' Gaff 
Rigged Schooner Jeanie B, and the 58' Brigantine Meka II. The sailing 
vessels will be under sail and firing black powder cannons within the 
confines of the safety zone. Due to their limited maneuverability and 
draft, the event vessels are restricted to within 200 yards of the main 
channel.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone on the 
waters of the Neuse River bound to the west by the U.S. Route 70 
Highway Draw Bridge, from James City extending 700 yards east along the 
U.S. Highway 17 Highway Fixed Bridge, to a point 300 yards due east of 
Neuse River Daybeacon 34. The limits of the safety zone will encompass 
all the waters of the Neuse River bound by the following points; 
onshore at New Bern in approximate position 35[deg]06'12'' W; 
077[deg]02'12'' N thence to 35[deg]05'52'' W; 077[deg]02'15'' N thence 
to 35[deg]05'49'' W; 077[deg]01'49'' N thence to 35[deg]06'17'' W; 
077[deg]01'48'' N thence to 35[deg]06'21'' W; 077[deg]02'06'' N. The 
temporary safety zone will be enforced from 11:30 a.m. to 1 p.m. and 
from 6:30 p.m. to 8 p.m. on May 8, 2010. The safety zone is necessary 
to provide for the safety of the participating vessels, crews, 
spectators, sponsor vessels, and other users and vessels of the 
waterway. Persons and vessels will be prohibited from entering into, 
transiting through, or anchoring within this safety zone unless 
authorized by the Captain of the Port, or a designated representative.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. Although this regulation will restrict 
access to the area, the effect of this rule will not be significant 
because: (i) The safety zone will be in effect for a limited duration 
of time; and (ii), the Coast Guard will give advance notification via 
maritime advisories so mariners can adjust their plans accordingly.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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. This rule will affect the following entities, some of which 
may be small entities: The owners or operators of tugs and barges, 
recreational, and fishing vessels intending to transit the specified 
portion of the Neuse River from 11:30 a.m. to 1 p.m. and from 6:30 p.m. 
to 8 p.m. on May 8, 2010.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule will be in effect for a limited duration of time and before the 
effective period, the Coast Guard will issue maritime advisories widely 
available to the users of the waterway.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct

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effect on State or local governments and would either preempt State law 
or impose a substantial direct cost of compliance on them. We have 
analyzed this rule under that Order and have determined that it does 
not have implications for federalism.

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.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
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 is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule establishes a temporary safety zone to 
protect the general public from the hazards associated with maneuvering 
deep draft sailing vessels in the limits of a narrow channel and the 
firing of black powder cannons during a civil war naval bombardment 
reenactment. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
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: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.T05-0256 to read as follows:


Sec.  165.T05-0256  Safety Zone; Neuse River, New Bern, NC.

    (a) Definitions. For the purposes of this section, Captain of the 
Port means the Commander, Sector North Carolina. Designated 
representative means any Coast Guard commissioned, warrant, or petty 
officer who has been authorized to act on the behalf of the Captain of 
the Port.
    (b) Location. The following area is a temporary safety zone: the 
waters of the Neuse River bound to the west by the U.S. Route 70 
Highway Draw Bridge, from James City extending 700 yards east along the 
U.S. Highway 17 Highway Fixed Bridge, to a point 300 yards due east of 
Neuse River Daybeacon 34. This zone includes all the waters of the 
Neuse River bound by the following points; Onshore at New Bern in 
approximate position 35[deg]06'12'' W; 077[deg]02'12'' N thence to 
35[deg]05'52'' W; 077[deg]02'15'' N thence to 35[deg]05'49'' W; 
077[deg]01'49'' N thence to 35[deg]06'17'' W; 077[deg]01'48'' N thence 
to 35[deg]06'21'' W; 077[deg]02'06'' N.
    (c) Regulations. (1) The general regulations contained in Sec.  
165.23 of this part apply to the area described in paragraph (b) of 
this section.
    (2) Persons or vessels requiring entry into or passage through any 
portion of the safety zone must first request authorization from the 
Captain of the Port, or a designated representative, unless the Captain 
of the Port previously announced via Marine Safety Radio Broadcast on 
VHF Marine Band Radio channel 22 (157.1 MHz) that this regulation will 
not be enforced in that portion of the safety zone. The Captain of the 
Port can be contacted at telephone number (252) 247-4570 or by radio on 
VHF Marine Band Radio, channels 13 and 16.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, and local agencies.
    (e) Enforcement period. This section will be enforced from 11:30 
a.m. to

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1 p.m. and from 6:30 p.m. to 8 p.m. on May 8, 2010 unless cancelled 
earlier by the Captain of the Port.

    Dated: April 6, 2010.
A. Popiel,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2010-9497 Filed 4-22-10; 8:45 am]
BILLING CODE 9110-04-P