[Federal Register Volume 68, Number 178 (Monday, September 15, 2003)]
[Proposed Rules]
[Pages 53930-53932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23503]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishing a permanent security 
zone on the waters adjacent to the Oyster Creek Generation Station. 
This would protect the safety and security of the plant from subversive 
activity, sabotage, or terrorist attacks initiated from surrounding 
waters. This action would close water areas around the plant.

DATES: Comments and related material must reach the Coast Guard on or 
before November 14, 2003.

ADDRESSES: You may mail comments and related material to Coast Guard 
Marine Safety Office Philadelphia, One Washington Avenue, Philadelphia, 
Pennsylvania, 19147. The Marine Safety Office Philadelphia Waterways 
Management Branch maintains the public docket for this rulemaking. 
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 this docket and will be available for inspection or 
copying at the above mentioned office between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Kevin Sligh or 
Lieutenant Junior Grade Toussaint Alston, Coast Guard Marine Safety 
Office/Group Philadelphia, at (215) 271-4889.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD05-03-
111), 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 
8\1/2\ by 11 inches, suitable for copying. 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 proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Marine Safety Office 
Philadelphia, Waterways Management Branch at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

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

[[Page 53931]]

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 waterfront facilities from damage, injury, or 
terrorist attack.
    On June 2, 2003, we published a temporary final rule entitled, 
``Security Zone; Oyster Creek Generation Station, Forked River, Ocean 
County, NJ,'' in the Federal Register (68 FR 32643). The temporary 
final rule designates the waters of the Forked River in the vicinity of 
the Oyster Creek Generation Station a security zone. No person or 
vessel may enter or navigate within this security zone without the 
permission of the Coast Guard. We propose to make the security zone in 
this area permanent.

Discussion of Proposed Rule

    This NPRM proposes to place a permanent security zone around 
critical infrastructure at the Oyster Creek Generation Station on the 
Forked River, Ocean County, New Jersey. No person or vessel would be 
able to enter or remain in the prescribed security zone without the 
permission of the Captain of the Port, Philadelphia, PA or designated 
representative. Federal, state, and local agencies would assist the 
Coast Guard in the enforcement of this proposed rule.

Regulatory Evaluation

    This proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule may affect the following entities, some of which 
may be small entities: owners or operators of fishing vessels and 
recreational vessels intending to transit portions of the Forked River.
    This security zone would not have a significant impact on a 
substantial number of small entities for the following reasons: the 
restrictions affect only a limited area and vessel traffic could pass 
safely around the security zone. Additionally, the opportunity to 
engage in recreational and charter fishing outside the geographical 
limits of the security zone would not be disrupted.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they could better 
evaluate its effects on them and participate in the rulemaking process. 
If the rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant Junior 
Grade Kevin Sligh or Lieutenant Junior Grade Toussaint Alston, Coast 
Guard Marine Safety Office/Group Philadelphia, at (215) 271-4889.

Collection of Information

    This proposed 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 proposed 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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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.

[[Page 53932]]

Civil Justice Reform

    This proposed 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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 proposed 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 the Instruction an ``Environmental 
Analysis Check List'' and a ``Categorical Exclusion Determination'' are 
not required for this rule. Comments on this section will be considered 
before we make the final decision on whether to categorically exclude 
this rule from further environmental review.

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 proposes 
to amend 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 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]49'12.0'' N, 074[deg]12'13.0'' W; thence to 39[deg]48'39.7'' N, 
074[deg]12'0'' W; along the shoreline, thence to 39[deg]48'40.0'' N, 
074[deg]12'0.3'' W; thence to 39[deg]49'11.8'' N, 074[deg]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 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: August 7, 2003.
Jonathan D. Sarubbi,
Captain, Coast Guard, Captain of the Port Philadelphia.
[FR Doc. 03-23503 Filed 9-12-03; 8:45 am]
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