[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Rules and Regulations]
[Pages 6559-6561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2986]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-205]
RIN 1625-AA00


Security Zone; Military Ocean Terminal Sunny Point and Lower Cape 
Fear River, Brunswick County, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary security zone at 
Military Ocean Terminal Sunny Point (MOTSU), North Carolina. Entry into 
or movement within the security zone will be prohibited without 
authorization from the Captain of the Port (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 12:01 a.m. e.s.t. on January 13, 
2004 to 12:01 a.m. e.d.t. on June 13, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD05-03-205 and are available for 
inspection or copying at Coast Guard Marine Safety Office, 721 Medical 
Center Drive, Suite 100, 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 
regulation. The Coast Guard is promulgating this security zone 
regulation to protect Military Ocean Terminal Sunny Point, NC, 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, pursuant to 5 U.S.C. 553(b) and 
(c), are not required for this regulation.

Background and Purpose

    Vessels frequenting the security zone at Military Ocean Terminal 
Sunny Point (MOTSU) facility serve as a vital link in the 
transportation of military munitions and explosives 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 
MOTSU facility, 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 munitions and explosives laden vessels moored to 
the MOTSU facility is critical to national defense and security, as 
well as to the safety and security of the MOTSU facility, 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 protect MOTSU and 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. The security zone contains the area 
and waters encompassed by a line connecting the northern tip of the 
security zone is at 3402.03' N, 07756.60' 
W, near Cape Fear River Channel Lighted Buoy 9 (LLNR 30355); extending 
south along the shore to 3400.00' N, 
07757.25' W, proceeding to the southern most tip of the 
zone at 3359.16' N, 07750.00' W, at then 
proceeding north to 3400.65' N, 07756.41' 
W, at Cape Fear River Channel Lighted Buoy 31 (LLNR 30670 & 39905); 
then back to the point of origin at 3402.03' N, 
07756.60' W.
    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 must 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 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 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 and operators of vessels intending to 
transit or anchor in the vicinity of Military Ocean Terminal Sunny 
Point. This includes owners and operators of vessels desiring to enter 
the security zone.
    This security zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. The 
security zone is not located in an area that would impede commercial or 
recreational traffic.

[[Page 6560]]

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 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 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.T05-205 to read as follow:


Sec. 165.T05-205  Security Zone: Military Ocean Terminal Sunny Point 
and Lower Cape Fear River, NC.

    (a) Location. The following area is a security zone: The area and 
waters encompassed by a line connecting the following points: the 
northern tip of the security zone is at 3402.03' N 
07756.60' W near Cape Fear River Channel Lighted Buoy 9 
(LLNR 30355); extending south along the shore to 
3400.00' N, 07757.25' W proceeding to the 
southern most tip of the Zone at 3359.16' N, 
07757.00' W then proceeding north to 
3400.65' N, 07756.41' W, at Cape Fear 
River Channel Lighted Buoy 31(LLNR 30670 & 39905); then back to the 
point of origin at 3402.03' N, 07756.60' 
W.
    (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 his or 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 into 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) 772-2000 or toll free 
(877) 229-0770.
    (3) The operator of any vessel within or in the immediate vicinity 
of this security zone while it is being enforced must:
    (i) Stop the vessel immediately upon being directed to do so by the 
Captain of the Port or his or her designated representative.

[[Page 6561]]

    (ii) Proceed as directed by the Captain of the Port or his or her 
designated representative.
    (d) Effective period. This section is in effect from 12:01 a.m. 
e.s.t., on January 13, 2004, to 12:01 a.m. e.d.t., on June 13, 2004.

    Dated: January 13, 2004.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, North 
Carolina.
[FR Doc. 04-2986 Filed 2-10-04; 8:45 am]
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