[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Proposed Rules]
[Pages 22751-22753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9481]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-016]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking

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SUMMARY: The Coast Guard proposes implementing a permanent security 
zone on the Cape Fear River 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: Comments and related material must reach the Coast Guard on or 
before May 27, 2004.

ADDRESSES: You may mail comments and related material to Coast Guard 
Marine Safety Office, 721 Medical Center Drive, Suite 100, Wilmington, 
North Carolina 28401. The Port Operations Department, Waterways 
Management Division maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket 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 7:30 a.m. and 3 
p.m., Monday through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD05-04-
016), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Coast Guard Marine Safety Office, 
Wilmington at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a separate notice in the 
Federal Register.

Background and Purpose

    Vessels frequenting the 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 explosive 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

[[Page 22752]]

subject to acts of terrorism or sabotage, or other criminal acts. The 
ability to control waterside access to munitions and explosive 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 proposes to establish 
this security zone to safeguard human life, vessels and facilities from 
sabotage, terrorist acts or other criminal acts.

Discussion of Proposed Rule

    The proposed rule is for a permanent security zone located on the 
Cape Fear River, North Carolina adjacent to the MOTSU facility and 
includes the area bound by the following points: beginning at a point 
located at 34[deg]02.03[min] N, 077[deg]56.60[min] W near Cape Fear 
River Channel Lighted Buoy 9 (LLNR 30355), extending south along the 
shore to 34[deg]00.00[min] N, 077[deg]57.25[min] W, proceeding to the 
southern most tip of the Zone at 33[deg]59.16[min] N, 
077[deg]57.00[min] W at then proceeding north to 34[deg]00.65[min] N, 
077[deg]56.41[min] W at Cape Fear River Channel Lighted Buoy 31(LLNR 
30670 & 39905) back to the point of origin at 34[deg]02.03[min] N, 
077[deg]56.60[min] W.
    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.
    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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    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 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 proposed 
rule would 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 entering the 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.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LCDR Charles A. 
Roskam II, Chief, Port Operations (910) 772-2200 or toll free (877) 
229-0770.

Collection of Information

    This proposed 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. We have analyzed this proposed 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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed 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 proposed 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 proposed 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 might 
disproportionately affect children.

[[Page 22753]]

Indian Tribal Governments

    This proposed 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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.
    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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: 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.

    2. Add Sec.  165.T05-016 to read as follow:


Sec.  165.T05-016--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 bound by the following points: beginning at a point located at 
34[deg]02.03' N, 077[deg]56.60' W near Cape Fear River Channel Lighted 
Buoy 9 (LLNR 30355), extending south along the shore to 34[deg]00.00' 
N, 077[deg]57.25' W, proceeding south to 33[deg]59.16' N, 
077[deg]57.00' W at then proceeding north to 34Sec.  00.65' N, 
077[deg]56.41' W at Cape Fear River Channel Lighted Buoy 31(LLNR 30670 
& 39905) back to the point of origin at 34[deg]02.03' N, 077[deg]56.60' 
W.
    (b) Captain of the Port. As used in 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 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 pass through 
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.
    (d) Enforcement. The Captain of the Port may be assisted by the 
U.S. Army in the patrol and enforcement of this security zone.

    Dated: April 8, 2004.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, North 
Carolina.
[FR Doc. 04-9481 Filed 4-26-04; 8:45 am]
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