6148 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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.

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 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6149

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.

■ 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

■ 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 § 165.T05–207 to read as 

follow:

§ 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 34°10′38.394′′ N, 

077°57′16.248′′ W (Point 1); across Cape 

Fear River to Southern most entrance of 

Brunswick River on the West Bank at 

34°10′38.052′′ N, 077°57′43.143′′ W 

(Point 2); extending along the West bank 

of the Brunswick River for 

approximately 750 yards to 

34°10′57.062′′ N, 077°58′01.342′′ W 

(Point 3); proceeding North across the 

Brunswick River to the east bank at 

34°11′04.846′′ N, 077°58′02.861′′ W 

(Point 4) and continuing north on the 

east bank for approximately 5000 yards 

along Eagle Island to 34°13′17.815′′ N, 

077°58′30.671′′ W (Point 5); proceeding 

East to 34°13′19.488′′ N, 077°58′24.414′′

W (Point 6); and then approximately 

1700 yards to 34°13′27.169′′ N, 

077°57′51.753′′ W (Point 7); proceeding 

East to 34°13′21.226′′ N, 077°57′19.264′′

W (Point 8); then across Cape Fear River 

to the Northeast corner of the Colonial 

Terminal Pier at 34°13′18.724′′ N, 

077°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°13′03.196′′ N, 

077°56′52.211′′ W (Point 10); extending 

South along Wilmington State Port 

property line to 34°12′43.409′′ N, 

077°56′50.815′′ W (Point 11); proceeding 

to the North entrance of Wilmington 

State Port at 34°12′28.854′′ N, 

077°57′01.017′′ W (Point 12); proceeding 

South along Wilmington State Port 

property line to 34°12′20.819′′ N, 

077°57′08.871′′ W (Point 13); continuing 

South along the Wilmington State Port 

property line to 34°12′08.164′′ N, 

077°57′08.530′′ W (Point 14); continuing 

along State Port property to 

34°11′44.426′′ N, 077°56′55.003′′ W 

(Point 15); proceeding South to the main 

6150 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

gate of the Wilmington State Port at 

34°11′29.578′′ N, 077°56′55.240′′ W 

(Point 16); proceeding South 

approximately 750 yards to the 

Southeast property corner of the Apex 

facility at 34°11′10.936′′ N, 

077°57′04.798′′ W (Point 17); proceeding 

West to East bank of Cape Fear River at 

34°11′11.092′′ N, 077°57′17.146′′ W 

(Point 18); proceeding South along East 

bank of Cape Fear River to the point of 

origins at 34°10′38.394′′ N, 

077°57′16.248′′ 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] 

BILLING CODE 4910–15–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[COTP San Juan 03–176] 

RIN 1625–AA00 

Security Zone; St. Croix, United States 

Virgin Islands

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for 

comments. 

SUMMARY: The Coast Guard is reestablishing a temporary security zone 

in the vicinity of the HOVENSA refinery 

facility on St. Croix, U.S. Virgin Islands. 

This security zone extends 3 miles 

seaward from the HOVENSA facility 

waterfront area along the south coast of 

the island of St. Croix, U.S. Virgin 

Islands. All vessels must receive 

permission from the U.S. Coast Guard 

Captain of the Port San Juan to entering 

this temporary security zone. This 

security zone is needed for national 

security reasons to protect the public 

and the HOVENSA facility from 

potential subversive acts.

DATES: This rule is effective from 11:59 

p.m. on December 24, 2003, through 

11:59 p.m. on April 15, 2004. Comments 

and related material must reach the 

Coast Guard on or before April 12, 2004.

ADDRESSES: 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 the docket [COTP San 

Juan 03–176] and will be available for 

inspection or copying at Marine Safety 

Office San Juan between 7 a.m. and 3:30 

p.m. Monday through Friday, except 

Federal holidays. Marine Safety Office 

San Juan, is located in the RODVAL 

Bldg, San Martin St. 90 Ste 400, 

Guaynabo, PR 00968. Marine Safety 

Office San Juan maintains the public 

docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: LT 

Fred Meadows, Marine Safety Office 

San Juan, Puerto Rico at (787) 706–2440.

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

We did not publish a notice of 

proposed rulemaking (NPRM) for this 

regulation. Under 5 U.S.C. 553(b)(B), the 

Coast Guard finds that good cause exists 

for not publishing a NPRM. Publishing 

a NPRM and delaying the rule’s 

effective date would be contrary to the 

public interest since immediate action is 

needed to protect the public, ports and 

waterways of the United States. 

For the same reasons, under 5 U.S.C. 

553(d)(3), the Coast Guard finds that 

good cause exists for making this rule 

effective less than 30 days after 

publication in the Federal Register. 

Similar regulations were established 

on December 19, 2001, and published in 

the Federal Register (67 FR 2332, 

January 17, 2002); and again on 

September 13, 2002 (67 FR 57952, 

September 13, 2002), on March 18, 2003 

(67 FR 22296, April 28, 2003); and on 

June 30, 2003 (67 FR 41081, July 10, 

2003). However, these regulations have 

expired—on June 15, 2002; December 

15, 2002; June 15, 2003; and December 

15, 2003, respectively. We did not 

receive any comments on these 

regulations. 

The Captain of the Port San Juan has 

determined that due to the continued 

security risks, the nature of the 

HOVENSA facility, recent increases in 

the Homeland Security Advisory 

System level and maritime security 

level, this rule is needed to ensure the 

safety and security of this facility. The 

Coast Guard intends to publish a notice 

of proposed rulemaking to propose 

making this temporary rule a final rule. 

Request for Comments 

Although the Coast Guard has good 

cause to implement this regulation 

without a notice of proposed 

rulemaking, we want to afford the 

public the opportunity to participate in 

this rulemaking by submitting 

comments and related material 

regarding the size and boundaries of 

these security zones in order to 

minimize unnecessary burdens. If you 

submit a comment, please include your 

name and address, identify the docket 

number for this rulemaking (COTP San 

Juan 03–176), 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 81⁄2 by 

11 inches, suitable for copying to the 

address indicated in ADDRESSES. If you 

would like to know they 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 temporary final rule in view 

of them. 

Background and Purpose 

Based on the September 11, 2001, 

terrorist attacks and recent increases in 

maritime security levels, there is an 

increased risk that subversive activity 

could be launched by vessels or persons 

in close proximity to the HOVENSA 

refinery on St. Croix, USVI against tank 

vessels and the waterfront facility. 

Given the highly volatile nature of the 

substances stored at the HOVENSA 

facility, this security zone is necessary 

to decrease the risk that subversive 

activity could be launched against the 

HOVENSA facility. The Captain of the 

Port San Juan is reducing this risk by 

prohibiting all vessels without a 

scheduled arrival from coming within 3 

miles of the HOVENSA facility unless 

specifically permitted by the Captain of 

the Port San Juan, his designated 

representative, or the HOVENSA 

Facility Port Captain. The Captain of the 

Port San Juan can be reached through