[Federal Register Volume 69, Number 23 (Wednesday, February 4, 2004)]
[Rules and Regulations]
[Pages 5282-5284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2308]


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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.

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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

[[Page 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.

[[Page 5284]]


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 Sec. 165.552 to read as follows.


Sec. 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<deg<ls-thn-eq>49'12.0'' N, 074<deg<ls-thn-eq>12'13.0'' W; thence to 
39<deg<ls-thn-eq>48'39.7'' N, 074<deg<ls-thn-eq>12'0'' W; along the 
shoreline, thence to 39<deg<ls-thn-eq>48'40.0'' N, 
074<deg<ls-thn-eq>12'0.3'' W; thence to 39<deg<ls-thn-eq>49'11.8'' N, 
074<deg<ls-thn-eq>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 Sec. 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]
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