[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.
[[Page 42879]]
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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