2023-10138. Safety Zone; Gallants Channel, Beaufort, NC

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing a safety zone on the navigable waters of Gallants Channel, near Beaufort, NC. The safety zone is necessary to enhance the safety of mariners and participants during the swim portion of a triathlon. Entry of vessels or persons into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP), Sector North Carolina, or a designated representative.

DATES:

This rule is effective May 12, 2023. The Coast Guard will enforce the safety zone in this rule on May 13, 2023.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG–2023–0050 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 Petty Officer Ken Farah, Waterways Management Division, U.S. Coast Guard; telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

On February 1, 2023, the FS Series organization notified the Coast Guard that it will be hosting the Crystal Coast Triathlon in Beaufort, NC. The swim portion of this event will take place from 8 a.m. to 10 a.m. on the waters of Gallants Channel each year, on the second Saturday in May. The swim portion of the Crystal Coast Triathlon will consist of approximately 400 participants. The racecourse will be on the waters of Gallants Channel and will run from the Route 70 Bridge in Beaufort, NC, then North-West to Russel Slough Channel Day-Beacon 10 (LLNR34860).

In response, on March 30, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Gallants Channel, Beaufort, NC” (88 FR 19027). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this swimming event. During the comment period that ended May 1, 2023, we received no comments.

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 contrary to public interest because immediate action is needed to protect non-participating persons, vessels, and participants against the hazards associated with restricted waterway during the swim portion of this triathlon.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 70034. The Captain of the Port, Sector North Carolina (COTP) has determined the presence of vessels, and anyone else in or transiting the designated area of Gallants Channel in Beaufort, NC during the swim portion of the triathlon would pose a safety concern to the swimmers, and to the vessels and others within the designated area, due to the large number of swimmers on the waterway during the swim portion of the triathlon. This rule is necessary to protect non-participating persons, vessels, and participants from the hazards associated with the event.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published March 30, 2023. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM. The safety zone will be enforced from 8 a.m. through 10 a.m., every second Saturday in May, although the enforcement period would be subject to change. The safety zone will include all navigable waters of Gallants Channel from the Route 70 Bridge in Beaufort, NC, at N 34°43′38″, W 076°40′04″ then North-West to Russel Slough Channel Day-Beacon 10 (LLNR34860) at N 34°43′58″, W 076°40′27.5″. This area is typically used by recreational boaters. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. To request permission to transit the area, mariners can contact Coast Guard Sector North Carolina Command Center at telephone number (910) 343–3882 or on-scene representatives on VHF–FM marine band radio channel 16 (156.8 MHz).

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 size, location, and duration of the safety zone. Vessel traffic will not be able to safely transit around this safety zone, which will impact a designated area of Gallants Channel in Beaufort, NC. The two-hour enforcement period should not be overly burdensome to any vessel or entity because it is not an area normally used for commercial vessel traffic. The Coast Guard will issue a Broadcast Notice to Mariners about the safety zone and about this rule, to notify vessels in the region of the establishment of this regulation. The rule will allow vessels to request permission from the COTP or a designated representative to enter the zone if necessary.

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 received no comments from the Small Business Administration on this rulemaking. 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 does not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting two hours that prohibits entry into portions of Gallants Channel in Beaufort, NC. 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.

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.

2. Add § 165.529 to read as follows:

§ 165.529

Safety Zone; Gallants Channel, Beaufort, NC.

(a) Definitions. For the purposes of this section—

Captain of the Port means the Commander, Coast Guard Sector North Carolina.

Participant means an individual or vessel involved with the Crystal Coast Triathlon.

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 safety zone: all navigable waters of Gallants Channel from the Route 70 Bridge in Beaufort, NC, at N 34°43′38″, W 076°40′04″ then North-West to Russel Slough Channel Day-Beacon 10 (LLNR34860) at N 34°43′58″, W 076°40′27.5″.

(c) Regulations. (1) The general regulations governing safety zones in § 165.23 apply to the area described in paragraph (b) of this section.

(2) With the exception of the participants, entry into or remaining in this safety zone is prohibited unless authorized by the COTP, Sector North Carolina or a designated representative.

(3) No vessel may be present in the safety zone when it is subject to enforcement, and any vessel in violation of that prohibition must depart the zone immediately.

(4) The COTP North Carolina can be reached through the Coast Guard Sector North Carolina Command Duty Officer, Wilmington, North Carolina, at telephone number 910–343–3882.

(5) The Coast Guard 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 section will be enforced the second Saturday in May, from 8 a.m. through 10 a.m. The enforcement period may change, but a notice will be provided if there is a change in the enforcement period.

Dated: May 5, 2023.

Matthew J. Baer,

Captain, U.S. Coast Guard, Captain of the Port, Sector North Carolina.