[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Rules and Regulations]
[Pages 42876-42879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16381]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-116]
RIN 1625-AA87


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 effective from June 13, 2004, until November 7, 
2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD05-04-116 and are available for 
inspection or copying at the 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:

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 rulemaking and publication at least 30 
days before the effective date of the rule 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

[[Page 42877]]

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 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

[[Page 42878]]

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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

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 record 
keeping 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 temporary Sec.  165.T05-116 to read as follow:


Sec.  165.T05-116  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 34[deg]10'38.394'' N, 077[deg]57'16.248'' W 
(Point 1); across Cape Fear River to Southern most entrance of 
Brunswick River on the West Bank at 34[deg]10'38.052'' N, 
077[deg]57'43.143'' W (Point 2); extending along the West bank of the 
Brunswick River for approximately 750 yards to 34[deg]10'57.062'' N, 
077[deg]58'01.342'' W (Point 3); proceeding North across the Brunswick 
River to the east bank at 34[deg]11'04.846'' N, 077[deg]58'02.861'' W 
(Point 4) and continuing north on the east bank for approximately 5000 
yards along Eagle Island to 34[deg]13'17.815'' N, 077[deg]58'30.671'' W 
(Point 5); proceeding East to 34[deg]13'19.488'' N, 077[deg]58'24.414'' 
W (Point 6); and then approximately 1700 yards to 34[deg]13'27.169'' N, 
077[deg]57'51.753'' W (Point 7); proceeding East to 34[deg]13'21.226'' 
N, 077[deg]57'19.264'' W (Point 8); then across Cape Fear River to the 
Northeast corner of the Colonial Terminal Pier at 34[deg]13'18.724'' N, 
077[deg]57'07.401'' 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 34[deg]13'03.196'' N, 077[deg]56'52.211'' W 
(Point 10); extending South along Wilmington State Port property line 
to 34[deg]12'43.409'' N, 077[deg]56'50.815'' W (Point 11); Proceeding 
to the North entrance of Wilmington State Port at 34[deg]12'28.854'' N, 
077[deg]57'01.017'' W (Point 12); Proceeding South along Wilmington 
State Port property line to 34[deg]12'20.819'' N, 077[deg]57'08.871'' W 
(Point 13); Continuing South along the Wilmington State Port property 
line to 34[deg]12'08.164'' N, 077[deg]57'08.530'' W (Point 14); 
Continuing along State Port property to 34[deg]11'44.426'' N, 
077[deg]56'55.003'' W (Point 15); Proceeding South to the main gate of 
the Wilmington State Port at 34[deg]11'29.578'' N, 077[deg]56'55.240'' 
W (Point 16); Proceeding South approximately 750 yards to the Southeast 
property corner of the Apex facility at 34[deg]11'10.936'' N, 
077[deg]57'04.798'' W (Point 17); Proceeding West to East bank of Cape 
Fear River at 34[deg]11'11.092'' N, 077[deg]57'17.146'' W (Point 18); 
Proceeding South along East bank of Cape Fear River to Original point 
of origin at 34[deg]10'38.394'' N, 077[deg]57'16.248'' W (Point 1). 
(NAD 1983)
    (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 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 rule is effective from June 13, 2004, 
until November 7, 2004.


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    Dated: June 13, 2004.
Byron L. Black,
Commander, U.S. Coast Guard, Acting Captain of the Port, Wilmington, 
North Carolina.
[FR Doc. 04-16381 Filed 7-16-04; 8:45 am]
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