[Federal Register Volume 69, Number 23 (Wednesday, February 4, 2004)]
[Rules and Regulations]
[Pages 5284-5286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2309]


-----------------------------------------------------------------------

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

[[Page 5285]]

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).
    The primary impact of this rule will be on vessels wishing to 
transit the affected waterway. Although this rule restricts traffic 
from freely transiting portions of Oyster Creek and Forked River, that 
restriction affects only a limited area and will be well publicized to 
allow mariners to make alternative plans.

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 may affect the following entities, some of which may be 
small entities: Owners or operators of fishing vessels and recreational 
vessels wishing to transit the portions of Oyster Creek and Forked 
River.
    The rule will not have a significant impact on a substantial number 
of small entities for the following reasons: The restrictions affect 
only a limited area and traffic will be allowed to transit through the 
zone with permission of the Coast Guard or designated representative. 
The opportunity to engage in recreational and charter fishing outside 
the geographical limits of the security zone will not be disrupted. 
Therefore, this regulation should have a negligible impact on 
recreational and charter fishing activity.

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.
    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 Security Risks. This 
rule is not an economically significant rule and does not create an 
environmental risk to health or risk to security 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. 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.
    A final ``Environmental Analysis Checklist'' and a final 
``Categorical Exclusion Determination'' will be 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.

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.


[[Page 5286]]



0
2. Section 165.T05-091 is reinstated and revised to read as follows:


Sec. 165.T05-091  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 
zone 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 temporary 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.
    (d) Effective period. This section is effective from 5 p.m. (EDT) 
on May 13, 2003, through March 4, 2004.

    Dated: January 16, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port Philadelphia.
[FR Doc. 04-2309 Filed 2-3-04; 8:45 am]
BILLING CODE 4910-15-P