[Federal Register Volume 68, Number 135 (Tuesday, July 15, 2003)]
[Rules and Regulations]
[Pages 41716-41719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17836]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-073]
RIN 1625-AA00


Security Zone; Cape Fear River, Eagle Island, North Carolina 
State Port Authority Terminal, Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is establishing a temporary security zone to 
include an area 800 yards south of the Cape Fear River Bridge 
encompassing Eagle Island, the Cape Fear River, and the grounds of the 
State Port Authority Terminal south to South Wilmington

[[Page 41717]]

Terminal. This action is necessary to provide security for and prevent 
acts of terrorist against vessels loading or offloading and the State 
Port Authority Terminal during a military operation. The security zone 
will prevent access to unauthorized persons who may attempt to enter 
the secure area via Eagle Island, the Cape Fear River, or the North 
Carolina State Port Authority Terminal.

DATES: This rule is effective from 8 a.m. EST on June 13, 2003, to 
11:59 p.m. EST on December 13, 2003. Comments are due on or before 
October 14, 2003.

ADDRESSES: Comments and documents indicated in this preamble as being 
available in the docket are part of docket CGD05-03-073 and will be 
available for inspection or copying at Coast Guard Marine Safety 
Office, 721 Medical Center Drive, Suite 100, Wilmington, North Carolina 
28401, between 9:30 a.m. and 2 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ensign Diego Benavides, Port Security, 
(910) 772-2232.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to submit comments on this temporary rule to our 
docket listed under ADDRESSES. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD05-03-
073), indicate the specific section of this document to which each 
comments applies, and give the reason for each comment. If you would 
like to know they reached us, please enclose a stamped, self-addressed 
postcard or envelope. We will consider all comments and related 
material received during the comment period and we may change this 
temporary rule in view of them.

Regulatory Information

    The U.S. Coast Guard did not publish a notice of proposed 
rulemaking (NPRM) for this regulation. The Coast Guard is promulgating 
these security zone regulations to protect the Wilmington State Port 
and the surrounding vicinity for reasons directly related to military 
operations and national security. Based on the military function 
exception set forth in the Administrative Procedure Act, 5 U.S.C. 
553(a)(1), notice and comment rulemaking and advance publication, 
pursuant to 5 U.S.C. 553(b) and (d), are not required for this 
regulation. As stated in our ``Request for Comments'' section, however, 
we do encourage you to comment on this currently-effective temporary 
rule. This temporary security zone is necessary to provide for the 
security of the United States.

Background and Purpose

    The security zone will prevent access to unauthorized persons who 
may attempt to enter the secure area via Eagle Island, the Cape Fear 
River, or the North Carolina State Port Authority terminal.

Discussion of Rule

    To provide security for, and prevent acts of terrorism against, 
vessels loading or offloading and the State Port Authority Terminal 
during a military operation , the security zone will prevent access to 
unauthorized persons who may attempt to enter the secure area via the 
Cape Fear River, the North Carolina State Port Authority terminal, or 
use Eagle Island as vantage point for surveillance of the secure area. 
This rule limits access to the regulated area to those vessels and 
persons authorized to enter and operate within the security zone. The 
Captain of the Port or her designated representative may authorize 
access to the security zone. Mariners must contact the control vessel 
on VHF-FM channel 16 to request access to transit through the regulated 
area. In addition, the Coast Guard will make notifications via maritime 
advisories.

Regulatory Evaluation

    This proposed 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. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    Although this regulation restricts access to the regulated area, 
the effect of this regulation will not be significant because: (i) the 
COTP or her representative may authorize access to the security zone; 
(ii) the security zone will be in effect for limited duration; and 
(iii) the Coast Guard will make notifications via maritime advisories 
so mariners can adjust their plans accordingly.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the U.S. 
Coast Guard have considered whether this proposed 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 and operators of vessels or vehicles 
intending to transit or anchor within waters or grounds of the security 
zone (including the North Carolina State Port Authority Terminal and 
the southern portion of Eagle Island) encompassed by a line connecting 
the following points: from South Wilmington Terminal at 
34[deg]10'38.394'' W, 077[deg]57'16.248'' N (Point 1); across Cape Fear 
River to Southern most entrance of Brunswick River on the West Bank at 
34[deg]10'38.052'' W, 077[deg]57'43.143'' N (Point 2); extending along 
the West bank of the Brunswick River for approximately 750 yards to 
34[deg]10'57.062'' W, 077[deg]58'01.342'' N (Point 3); proceeding north 
across the Brunswick River to the east bank at 34[deg]11'04.846'' W, 
077[deg]58'02.861'' N (Point 4); continuing north on the east bank for 
approximately 5000 yards along Eagle Island to 34[deg]13'17.815'' W, 
077[deg]58'30.671'' N (Point 5), proceeding east to 34[deg]13'19.488'' 
W, 077[deg]58'24.414'' N (Point 6); then approximately 1700 yards to 
34[deg]13'27.169'' W, 077[deg]57'51.753'' N (Point 7); proceeding east 
to 34[deg]13'21.226'' W, 077[deg]57'19.264'' N (Point 8); then across 
Cape Fear River to the northeast corner of the Colonial Terminal Pier 
at 34[deg]13'18.724'' W, 077[deg]57'07.401'' N (Point 9) 800 yards 
south of Cape Fear Memorial Bridge; proceeding south along shoreline 
(east bank) of Cape Fear River for approximately 500 yards; proceeding 
east inland to Wilmington State Port property line at 
34[deg]13'03.196'' W, 077[deg]56'52.211'' N (Point 10); extending south 
along Wilmington State Port property line to 34[deg]12'43.409'' W, 
077[deg]56'50.815'' N (Point 11); proceeding to the north entrance of 
Wilmington State Port at 34[deg]12'28.854'' W, 077[deg]57'01.017'' N 
(Point 12); proceeding south along Wilmington State Port property line 
to 34[deg]12'20.819'' W, 077[deg]57'08.871'' N (Point 13); continuing 
south along the Wilmington State Port property line to 
34[deg]12'08.164'' W, 077[deg]57'08.530'' N (Point 14); continuing 
along State Port property to 34[deg]11'44.426'' W, 077[deg]56'55.003'' 
N (Point 15); proceeding south to the main gate of the Wilmington State 
Port at

[[Page 41718]]

34[deg]11'29.578'' W, 077[deg]56'55.240'' N (Point 16); proceeding 
south approximately 750 yards to the southeast property corner of the 
Apex facility at 34[deg]11'10.936'' W, 077[deg]57'04.798'' N (Point 
17); proceeding west to east bank of Cape Fear River at 
34[deg]11'11.092'' W, 077[deg]57'17.146'' N (Point 18); and proceeding 
south along East bank of Cape Fear River to original point of origin at 
34[deg]10'38.394'' W, 077[deg]57'16.248'' N (Point 1).
    This security zone is in effect from 8 a.m. EST on June 13, 2003, 
to 11:59 p.m. EST on December 13, 2003.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), the U.S. Coast Guard offer 
to assist small entities in understanding this rule so that they can 
better evaluate its effects on them and participate in the rulemaking 
process. If the rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact the address listed 
under ADDRESSES.
    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 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).

Collection of Information

    This rule would call 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 effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. The U.S. Coast Guard has 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 or more in any 
one year. Though this rule would not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would not effect 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

    The U.S. Coast Guard has 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 
would 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 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.

Energy Effects

    The U.S. Coast Guard has analyzed this rule under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. The U.S. Coast Guard has 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.

Environment

    The U.S. Coast Guard has considered the environmental impact of 
this rule and concluded that, under figure 2-1, paragraph (34)(g), of 
Commandant Instruction M16475.lD, this rule is categorically excluded 
from further environmental documentation. This rule establishes a 6-
month security zone.

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; 50 U.S.C. 191, 195; 33 CFR 
1.05-1(g), 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.T05-073 to read as follows:


Sec.  165.T05-073  Security Zone: Cape Fear River, Eagle Island and 
North Carolina State Port Authority Terminal, Wilmington, NC.

    (a) Location. The following area is a security zone: All waters and 
grounds, including the North Carolina State Port Authority Terminal and 
the southern portion of Eagle Island, encompassed by a line connecting 
the following points: from South Wilmington Terminal at 
34[deg]10'38.394'' W, 077[deg]57'16.248'' N (Point 1); across Cape Fear 
River to Southern most entrance of Brunswick River on the West Bank at 
34[deg]10'38.052'' W, 077[deg]57'43.143'' N (Point 2); extending along 
the West bank of the Brunswick River for approximately 750 yards to 
34[deg]10'57.062'' W, 077[deg]58'01.342[deg] N (Point 3); proceeding 
north across the Brunswick River to the east bank at 34[deg]11'04.846'' 
W, 077[deg]58'02.861'' N (Point 4); continuing north on the east bank 
for approximately 5000 yards along Eagle Island to 34[deg]13'17.815'' 
W, 077[deg]58'30.671'' N (Point 5), proceeding east to 
34[deg]13'19.488'' W, 077[deg]58'24.414'' N (Point 6); then 
approximately 1700 yards to 34[deg]13'27.169'' W, 077[deg]57'51.753'' N 
(Point 7); proceeding east to 34[deg]13'21.226'' W, 077[deg]57'19.264'' 
N (Point 8); then across Cape Fear River to the northeast corner of the 
Colonial Terminal Pier at 34[deg]13'18.724'' W, 077[deg]57'07.401'' N 
(Point 9) 800 yards south of Cape Fear Memorial Bridge;

[[Page 41719]]

proceeding south along shoreline (east bank) of Cape Fear River for 
approximately 500 yards; proceeding east inland to Wilmington State 
Port property line at 34[deg]13'03.196'' W, 077[deg]56'52.211'' N 
(Point 10); extending south along Wilmington State Port property line 
to 34[deg]12'43.409'' W, 077[deg]56'50.815'' N (Point 11); proceeding 
to the north entrance of Wilmington State Port at 34[deg]12'28.854'' W, 
077[deg]57'01.017'' N (Point 12); proceeding south along Wilmington 
State Port property line to 34[deg]12'20.819'' W, 077[deg]57'08.871'' N 
(Point 13); continuing south along the Wilmington State Port property 
line to 34[deg]12'08.164'' W, 077[deg]57'08.530'' N (Point 14); 
continuing along State Port property to 34[deg]11'44.426'' W, 
077[deg]56'55.003'' N (Point 15); proceeding south to the main gate of 
the Wilmington State Port at 34[deg]11'29.578'' W, 077[deg]56'55.240'' 
N (Point 16); proceeding south approximately 750 yards to the southeast 
property corner of the Apex facility at 34[deg]11'10.936'' W, 
077[deg]57'04.798'' N (Point 17); proceeding west to east bank of Cape 
Fear River at 34[deg]11'11.092'' W, 077[deg]57'17.146'' N (Point 18); 
and proceeding south along East bank of Cape Fear River to original 
point of origin at 34[deg]10'38.394'' W, 077[deg]57'16.248'' N (Point 
1).
    (b) Captain of the Port. For purposes of this section, Captain of 
the Port means the Commanding Officer of the Marine Safety Office 
Wilmington, NC, or any Coast Guard commissioned, warrant, or petty 
officer who has been authorized to act on her behalf.
    (c) Regulations. (1) All persons are required to comply with the 
general regulations governing security zones in 33 CFR 165.33.
    (2) Persons or vessels requiring entry into or passage within the 
zone must first request authorization from the Captain of the Port or 
her designated representative. The Captain of the Port's representative 
enforcing the zone can be contacted on VHF marine band radio, channel 
16. The Captain of the Port can be contacted at (910) 772-2200.
    (3) The operator of any vessel within this security zone shall:
    (i) Stop the vessel immediately upon being directed to do so by the 
Captain of the Port or her designated representative.
    (ii) Proceed as directed by the Captain of the Port or her 
designated representative.
    (d) Effective period. This section is effective from 8 a.m. EST on 
June 13, 2003, to 11:59 p.m. EST on December 13, 2003.

    Dated: June 13, 2003.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, North 
Carolina.
[FR Doc. 03-17836 Filed 7-14-03; 8:45 am]
BILLING CODE 4910-15-P