5282 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

Dated: January 16, 2004. 

Jonathan D. Sarubbi, 

Captain, U.S. Coast Guard, Captain of the 

Port, Philadelphia.

[FR Doc. 04–2307 Filed 2–3–04; 8:45 am] 

BILLING CODE 4910–15–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[CGD05–03–111] 

RIN 1625–AA00 

Security Zone; Oyster Creek 

Generation Station, Forked River, 

Ocean County, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

SUMMARY: The Coast Guard is 

establishing a security zone in the 

Captain of the Port, Philadelphia, PA 

zone, immediately adjacent to the 

nuclear power facility at Oyster Creek 

Generation Station. This zone is needed 

to ensure public safety and security 

from subversive or terrorist acts. This 

rule is intended to prevent future 

terrorist attacks against nuclear power 

facilities by denying entry into the zone 

unless authorized by the Captain of the 

Port, or their designated representative.

DATES: This rule is effective March 5, 

2004.

ADDRESSES: Comments and materials 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket CGD05–03–111, which is 

available for inspection or copying at 

Coast Guard Marine Safety Office 

Philadelphia, One Washington Avenue, 

Philadelphia, Pennsylvania 19147 

between 8 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Junior Grade Kevin Sligh or 

Ensign Doreen Moore, Coast Guard 

Marine Safety Office Philadelphia, at 

(215) 271–4889.

SUPPLEMENTARY INFORMATION: 

Regulatory History 

On September 15, 2003 we published 

a notice of proposed rulemaking 

(NPRM) entitled ‘‘Security Zone; Oyster 

Creek Generation Station, Forked River, 

Ocean County, NJ’’ (68 FR 53930). We 

received two letters commenting on this 

proposed rule. Both letters requested a 

public hearing. After considering the 

comments, the COTP Philadelphia 

decided not to hold a public hearing. 

In addition the following temporary 

final rule was published in the Federal 

Register: ‘‘Security Zone; Oyster Creek 

Generation Station, Forked River, Ocean 

County, NJ’’ (68 FR 32643, June 2, 

2003). That temporary final rule 

established a security zone around the 

Oyster Creek Generating Station, Forked 

River, Ocean County, NJ. The original 

effective date of the temporary final rule 

was to expire at 5 p.m. (EST) on January 

24, 2004. The effective date has been 

extended through March 4, 2004. 

Background and Purpose 

Terrorist attacks on September 11, 

2001, inflicted catastrophic human 

casualties and property damage. These 

attacks highlighted the terrorists’ ability 

and desire to utilize multiple means in 

different geographic areas to increase 

their opportunities to successfully carry 

out their mission, thereby maximizing 

destruction using multiple terrorist acts. 

Since the September 11, 2001 terrorist 

attacks on the World Trade Center in 

New York, the Pentagon in Arlington, 

Virginia and Flight 93, the Federal 

Bureau of Investigation (FBI) has issued 

several warnings concerning the 

potential for additional terrorist attacks 

within the United States. The threat of 

maritime attacks is real as evidenced by 

the October 2002 attack on a tank vessel 

off the coast of Yemen and the prior 

attack on the USS COLE. These attacks 

manifest a continuing threat to U.S. 

assets as described in the President’s 

finding in Executive Order 13273 of 

August 21, 2002 (67 FR 56215, 

September 3, 2002) that the security of 

the U.S. is endangered by the September 

11, 2001 attacks and that such 

disturbances continue to endanger the 

international relations of the United 

States. See also Continuation of the 

National Emergency with Respect to 

Certain Terrorist Attacks, (67 FR 58317, 

September 13, 2002); Continuation of 

the National Emergency With Respect 

To Persons Who Commit, Threaten To 

Commit, Or Support Terrorism, (67 FR 

59447, September 20, 2002). The U.S. 

Maritime Administration (MARAD) in 

Advisory 02–07 advised U.S. shipping 

interests to maintain a heightened state 

of alert against possible terrorist attacks. 

MARAD more recently issued Advisory 

03–01 informing operators of maritime 

interests of increased threat possibilities 

to vessels and facilities and a higher risk 

of terrorist attack to the transportation 

community in the United States. The 

ongoing hostilities in Afghanistan and 

Iraq have made it prudent for U.S. ports 

and waterways to be on a higher state 

of alert because the al Qaeda 

organization and other similar 

organizations have declared an ongoing 

intention to conduct armed attacks on 

U.S. interests worldwide.

Due to increased awareness that 

future terrorist attacks are possible, the 

Coast Guard as lead federal agency for 

maritime homeland security, has 

determined that the Captain of the Port 

must have the means to be aware of, 

deter, detect, intercept, and respond to 

asymmetric threats, acts of aggression, 

and attacks by terrorists on the 

American homeland while still 

maintaining our freedoms and 

sustaining the flow of commerce. A 

security zone is a tool available to the 

Coast Guard that may be used to limit 

vessel traffic in a specific area to help 

protect vessels from damage, injury, or 

terrorist attack. 

The Captain of the Port of 

Philadelphia has determined that a 

security zone is necessary to protect the 

public, ports, and waterways of the 

United States from potential subversive 

acts. 

Discussion of Comments 

During the public comment period we 

received two letters. Both letters 

expressed concern that the security zone 

would exclude kayakers from access to 

paddle in specific areas on the 

Susquehanna River. Each respondent 

also requested a public hearing to 

discuss the proposed rule. 

The Captain of the Port of 

Philadelphia has carefully weighed 

security concerns versus public access 

concerns in the decision to establish 

this security zone. The temporary and 

permanent security zone size and access 

to the areas were carefully considered 

and balanced against the increased need 

for safety and security outside the 

nuclear facility. The permanent zone 

will provide a clear area in which to 

detect persons or vessels while 

providing for traditional use outside of 

the security zone. This final rule 

remains unchanged from the proposed 

rules. A public hearing was considered, 

however given the number of requests 

and the need for increased security 

around the nuclear facility, no public 

hearing was held. 

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 

Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 5283

(DHS). No changes have been made to 

the rule. 

We expect the economic impact of 

this rule to be so minimal that a full 

Regulatory Evaluation under the 

regulatory policies and procedures of 

DHS is unnecessary. There is ample 

room for vessels to navigate around the 

security zone and the Captain of the 

Port may allow vessels to enter the zone 

on a case-by-case basis with the express 

permission of the Captain of the Port of 

Philadelphia or their designated 

representative. 

Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we 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 zone is limited in size and leaves 

ample room for vessels to navigate 

around the zone. The zone will not 

significantly impact commuter and 

passenger vessel traffic patterns; the 

vessels may be allowed to enter the zone 

on a case-by-case basis, with the express 

permission of the Captain of the Port of 

Philadelphia or their designated 

representative. 

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, as 

none were identified that will be 

affected by the final rule.

Vessel traffic counts indicate the 

waterway users will continue to have 

the same access to the waterway as in 

the past, with the exception of a remote 

small area surrounding the waterfront 

near the Oyster Creek Generation 

Station. 

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 the rule so that they 

could 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 Coast 

Guard Marine Safety Office 

Philadelphia in writing at the address 

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 

an 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. We 

invite your comments on how this rule 

might impact tribal governments, even if 

that impact may not constitute a ‘‘tribal 

implication’’ under the order.

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. It has not been designated by the 

Administrator of the Office of 

Information and Regulatory Affairs 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 M16475.1D, 

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 

Commandant Instruction M16475.lD, 

from further environmental 

documentation. 

We have considered waterside access 

constraints around the security zone 

and have determined the public can 

safely transit the affected waterways 

outside the security zone, without 

significant impact on the environment.

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and record keeping 

requirements, Security measures, 

Waterways.

5284 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

■ 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 § 165.552 to read as follows.

§ 165.552 Security Zone; Oyster Creek 

Generation Station, Forked River, Ocean 

County, New Jersey. 

(a) Location. The following area is a 

security zone: Starting at the south 

branch of the Forked River in the 

vicinity of the Oyster Creek Generation 

Station, bounded by a line beginning at 

39°49′12.0′′ N, 074°12′13.0′′ W; thence to 

39°48′39.7′′ N, 074°12′0′′ W; along the 

shoreline, thence to 39°48′40.0′′ N, 

074°12′0.3′′ W; thence to 39°49′11.8′′ N, 

074°12′10.5′′ W; thence back along the 

shoreline to the beginning point. All 

coordinates reference Datum: NAD 

1983. 

(b) Regulations. (1) All persons are 

required to comply with the general 

regulations governing security zones in 

§ 165.33 of this part. 

(2) No person or vessel may enter or 

navigate within this security zone 

unless authorized to do so by the Coast 

Guard or designated representative. Any 

person or vessel authorized to enter the 

security zones must operate in strict 

conformance with any directions given 

by the Coast Guard or designated 

representative and leave the security 

zone immediately if the Coast Guard or 

designated representative so orders. 

(3) The Coast Guard or designated 

representative enforcing this section can 

be contacted on VHF Marine Band 

Radio, channels 13 and 16. The Captain 

of the Port can be contacted at (215) 

271–4807. 

(4) The Captain of the Port will notify 

the public of any changes in the status 

of this security zone by Marine Safety 

Radio Broadcast on VHF–FM marine 

band radio, channel 22 (157.1 MHZ). 

(c) Definitions. For the purposes of 

this section, Captain of the Port means 

the Commanding Officer of the Coast 

Guard Marine Safety Office/Group 

Philadelphia, or any Coast Guard 

commissioned, warrant, or petty officer 

who has been authorized by the Captain 

of the Port to act as a designated 

representative on his behalf.

Dated: January 23, 2004. 

Liam J. Slein, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port Philadelphia.

[FR Doc. 04–2308 Filed 2–3–04; 8:45 am] 

BILLING CODE 4910–15–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

CFR Part 165

[COTP PHILADELPHIA 03–005] 

RIN 1625–AA00

Security Zone; Oyster Creek 

Generation Station, Forked River, 

Ocean County, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule, change in 

effective period. 

SUMMARY: The Coast Guard is 

continuing a temporary security zone on 

the waters adjacent to the Oyster Creek 

Generation Station. This zone will 

protect the safety and security of the 

plants from subversive activity, 

sabotage, or terrorist attacks initiated 

from surrounding waters. This action 

will close water areas around the plants.

DATES: Effective January 24, 2004. 

Section 165.T05–091, added at 68 FR 

32645, June 2, 2003, effective from 5 

p.m. EDT on May 13, 2003, to 5 p.m. 

EST on January 24, 2004, as amended by 

this rule is effective through March 4, 

2004.

ADDRESSES: Documents as indicated in 

this preamble are available as part of 

docket COTP Philadelphia 03–005 for 

inspection or copying at Coast Guard 

Marine Safety Office Philadelphia, One 

Washington Avenue, Philadelphia, 

Pennsylvania, 19147, between 8 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Junior Grade Kevin Sligh or 

Ensign Doreen Moore, Coast Guard 

Marine Safety Office/Group 

Philadelphia, at (215) 271–4889.

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) and 

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

cause exists for not publishing a NPRM 

and for making this regulation effective 

less than 30 days after publication in the 

Federal Register. Based upon the 

warnings from national security and 

intelligence personnel, this rule is 

urgently required to protect the plant 

from subversive activity, sabotage or 

possible terrorist attacks initiated from 

the waters surrounding the plants. 

It took longer to resolve issues related 

to the final rule, which appears 

elsewhere in today’s Federal Register, 

that will create a permanent security 

zone in this area than we originally 

expected at the time the last temporary 

final rule was issued. This new 

temporary final rule is necessary 

because it would be contrary to public 

interest not to maintain a temporary 

safety and security zone until the final 

rule becomes effective March 5, 2004. 

This security zone should have 

minimal impact on vessel transits 

because the security zone does not block 

the channel. 

Background and Purpose 

Due to the continued warnings from 

national security and intelligence 

officials that future terrorist attacks are 

possible, such as those launched against 

New York and Washington, DC on 

September 11, 2001, heightened security 

measures are necessary for the area 

surrounding the Oyster Creek 

Generation Station. This rule will 

provide the Captain of the Port 

Philadelphia with enforcement options 

to deal with potnetial threats to the 

security of the plants. 

Currently, the need for this security 

zone still exists. This temporary rule 

will continue the effective period of the 

security zone through March 4, 2004 

during the 30-day delayed effective 

period of a final rule published 

elsewhere in this issue of the Federal 

Register. That final rule, entitled 

‘‘Security Zone; Oyster Creek 

Generation Station, Forked River, Ocean 

County, NJ’’, will become effective 

March 5, 2004 and will implement a 

permanent security zone surrounding 

the plant.

Discussion of Rule 

No person or vessel may enter or 

remain in the prescribed security zone 

at any time without the permission of 

the Captain of the Port, Philadelphia, 

Pennsylvania or designated 

representative. Federal, state, and local 

agencies may assist the Coast Guard in 

the enforcement of this rule. 

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