[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 76997-76999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 910-772-2239, 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

[[Page 76998]]

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

[[Page 76999]]

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 910-343-3882.
    (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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