[Federal Register Volume 69, Number 27 (Tuesday, February 10, 2004)]
[Rules and Regulations]
[Pages 6148-6150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2735]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-207]

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.

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SUMMARY: The Coast Guard is establishing a temporary security zone at 
the North Carolina State Port Authority (NCSPA), Wilmington to include 
the Cape Fear River and Eagle Island. Entry into or movement within the 
security zone will be prohibited without authorization from the COTP. 
This action is necessary to safeguard the vessels and the facility from 
sabotage, subversive acts, or other threats.

DATES: This rule is in effect from January 15, 2004, to June 13, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD05-03-207 and are available for 
inspection or copying at the Marine Safety Office 721 Medical Center 
Drive Wilmington, North Carolina 28401 between 7:30 a.m. and 3 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LCDR Chuck Roskam, Chief, Port 
Operations (910) 772-2200 or toll free (877) 229-0770.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
rule. The Coast Guard is promulgating this security zone regulation to 
protect NCSPA Wilmington and the surrounding vicinity from threats to 
national security. Accordingly, based on the military function 
exception set forth in the Administrative Procedure Act, 5 U.S.C. 
553(a)(1), notice and comment rule-making and advance publication are 
not required for this regulation.

Background and Purpose

    Vessels frequenting the North Carolina State Port Authority (NCSPA) 
Wilmington facility serve as a vital link in the transportation of 
military munitions, explosives, equipment, and personnel in support of 
Department of Defense missions at home and abroad. This vital 
transportation link is potentially at risk to acts of terrorism, 
sabotage and other criminal acts. Munitions and explosives laden 
vessels also pose a unique threat to the safety and security of the 
NCSPA Wilmington, vessel crews, and others in the maritime community 
and the surrounding community should the vessels be subject to acts of 
terrorism or sabotage, or other criminal acts. The ability to control 
waterside access to vessels laden with munitions and explosives, as 
well as those used to transport military equipment and personnel, 
moored at the NCSPA Wilmington is critical to national defense and 
security, as well as to the safety and security of the NCSPA 
Wilmington, vessel crews, and others in the maritime community and the 
surrounding community. Therefore, the Coast Guard is establishing this 
security zone to safeguard human life, vessels and facilities from 
sabotage, terrorist acts or other criminal acts.

Discussion of Rule

    The security zone is necessary to provide security for, and prevent 
acts of terrorism against, vessels loading or offloading and the NCSPA 
Wilmington facility during a military operation. It will include an 
area from 800 yards south of the Cape Fear River Bridge encompassing 
the southern end of Eagle Island, the Cape Fear River, and the grounds 
of the State Port Authority Terminal south to South Wilmington 
Terminal. 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. The security zone 
will protect vessels moored at the facility, their crews, others in the 
maritime community and the surrounding communities from subversive or 
terrorist attack that could cause serious negative impact to vessels, 
the port, or the environment, and result in numerous casualties.
    No person or vessel may enter or remain in the security zone at any 
time without the permission of the Captain of the Port, Wilmington. 
Each person or vessel operating within the security zone will obey any 
direction or order of the Captain of the Port. The Captain of the Port 
may take possession and control of any vessel in a security zone and/or 
remove any person, vessel, article or thing from this security zone.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    Although this regulation restricts access to the security zone, the 
effect of this regulation will not be significant because: (i) The COTP 
or his or her representative may authorize access to the security zone; 
(ii) the security zone will be enforced 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), 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 vessels intending to transit 
or anchor in a portion of the Cape Fear River that is within the 
security zone.
    This security zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. 
Although the security zone will apply to the entire width of the river, 
traffic will be allowed to pass through the zone with the permission of 
the COTP or his or her designated representative. Before the effective 
period, we will issue maritime advisories widely available to users of 
the river.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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. If the rule 
will affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for

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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 
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).

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 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 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. A final ``Environmental Analysis Check 
List'' and a final ``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; 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.T05-207 to read as follow:


Sec. 165.T05-207   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: The grounds of 
the North Carolina State Port Authority, Wilmington Terminal and the 
southern portion of Eagle Island; and an area encompassed from South 
Wilmington Terminal at 3410[min]38.394[sec] N, 
07757[min]16.248[sec] W (Point 1); across Cape Fear 
River to Southern most entrance of Brunswick River on the West Bank at 
3410[min]38.052[sec] N, 
07757[min]43.143[sec] W (Point 2); extending along the 
West bank of the Brunswick River for approximately 750 yards to 
3410[min]57.062[sec] N, 
07758[min]01.342[sec] W (Point 3); proceeding North 
across the Brunswick River to the east bank at 
3411[min]04.846[sec] N, 
07758[min]02.861[sec] W (Point 4) and continuing north 
on the east bank for approximately 5000 yards along Eagle Island to 
3413[min]17.815[sec] N, 
07758[min]30.671[sec] W (Point 5); proceeding East to 
3413[min]19.488[sec] N, 
07758[min]24.414[sec] W (Point 6); and then 
approximately 1700 yards to 3413[min]27.169[sec] N, 
07757[min]51.753[sec] W (Point 7); proceeding East to 
3413[min]21.226[sec] N, 
07757[min]19.264[sec] W (Point 8); then across Cape Fear 
River to the Northeast corner of the Colonial Terminal Pier at 
3413[min]18.724[sec] N, 
07757[min]07.401[sec] W (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 
3413[min]03.196[sec] N, 
07756[min]52.211[sec] W (Point 10); extending South 
along Wilmington State Port property line to 
3412[min]43.409[sec] N, 
07756[min]50.815[sec] W (Point 11); proceeding to the 
North entrance of Wilmington State Port at 
3412[min]28.854[sec] N, 
07757[min]01.017[sec] W (Point 12); proceeding South 
along Wilmington State Port property line to 
3412[min]20.819[sec] N, 
07757[min]08.871[sec] W (Point 13); continuing South 
along the Wilmington State Port property line to 
3412[min]08.164[sec] N, 
07757[min]08.530[sec] W (Point 14); continuing along 
State Port property to 3411[min]44.426[sec] N, 
07756[min]55.003[sec] W (Point 15); proceeding South to 
the main

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gate of the Wilmington State Port at 
3411[min]29.578[sec] N, 
07756[min]55.240[sec] W (Point 16); proceeding South 
approximately 750 yards to the Southeast property corner of the Apex 
facility at 3411[min]10.936[sec] N, 
07757[min]04.798[sec] W (Point 17); proceeding West to 
East bank of Cape Fear River at 3411[min]11.092[sec] N, 
07757[min]17.146[sec] W (Point 18); proceeding South 
along East bank of Cape Fear River to the point of origins at 
3410[min]38.394[sec] N, 
07757[min]16.248[sec] W (Point 1).
    (b) Captain of the Port. 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 with a need to enter or get passage within 
the security zone, must first request authorization from the Captain of 
the Port. 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 or toll free (877) 229-
0770.
    (3) The operator of any vessel within this security zone must:
    (i) Stop the vessel immediately upon being directed to do so by the 
Captain of the Port or his or her designated representative.
    (ii) Proceed as directed by the Captain of the Port or his or her 
designated representative.
    (d) Effective period. This section is effective from January 15, 
2004, to June 13, 2004.

    Dated: January 15, 2004.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, North 
Carolina.
[FR Doc. 04-2735 Filed 2-9-04; 8:45 am]
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