[Federal Register Volume 69, Number 45 (Monday, March 8, 2004)]
[Rules and Regulations]
[Pages 10616-10618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5153]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP PHILADELPHIA 03-007]
RIN 1625-AA00


Security Zone; Three Mile Island Generating Station, Susquehanna 
River, Dauphin County, Pennsylvania

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is continuing the effective period of the 
temporary security zone on the waters adjacent to the Three Mile Island 
Generating Station. This 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 February 25, 2004, Sec.  165.T05-093, originally added 
at 68 FR 33399, June 4, 2003, effective from 5 p.m. e.d.t. on May 13, 
2003, to 5 p.m. e.s.t. on January 24, 2004; and reinstated and extended 
at 69 FR 6156, February 10, 2004, effective January 16, 2004, through 
11:59 p.m. (e.s.t.) on February 29, 2004, is reinstated and is 
effective through July 31, 2004.

ADDRESSES: Documents as indicated in this preamble are available as 
part of docket COTP PHILADELPHIA 03-007 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 Jill Munsch, 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.
    Delaying the effective date of the rule would be contrary to the 
public interest, since immediate action is needed to protect the 
persons at the facilities, the public and surrounding communities from 
the release of nuclear radiation. This security zone should have 
minimal impact on vessel transits because the security zone does not 
block the channel.
    It took longer to resolve issues related to our proposed rule to 
created a permanent zone (68 FR 54177, September 16, 2003) than was 
expected at the time the last temporary final rule was issued, and new 
issues have since been discovered. 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.

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 Three Mile Island Generating Station. This rule will 
provide the Captain of the Port Philadelphia with enforcement options 
to deal with potential threats to the security of the plants.
    The Coast Guard intends to implement a permanent security zone 
surrounding the plants. The Coast Guard will use the effective period 
of this temporary final rule to complete its rulemaking started with 
our September 16, 2003, publication of a notice of proposed rulemaking 
(NPRM) in the Federal Register (68 FR 54177) to develop a permanent 
regulation tailored to the present and foreseeable security environment 
within the Captain of the Port, Philadelphia, Pennsylvania zone.
    Currently, the need for this security zone still exists. The 
extension of the security zone through the end of July 2004, will allow 
the Coast Guard time to establish a Memorandum of Understanding with 
civilian authorities and to publish a NPRM in the Federal Register 
without an interruption in the protection provided by the security 
zone.

Discussion of Rule

    This temporary rule will extend the effective period of the 
security zone from 11:59 p.m. (e.s.t.) on February 29, 2004, through 
July 31, 2004. The size of the zone remains unchanged. 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 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 the Susquehanna River, that 
restriction affects only a limited area and will be well publicized to 
allow mariners to make alternative plans.

[[Page 10617]]

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 the Susquehanna 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)(f) and (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.


0
2. Temporary Sec.  165.T05-093 is reinstated and revised to read as 
follows:


Sec.  165.T05-093  Security Zone; Three Mile Island Generating Station, 
Susquehanna River, York County, Pennsylvania.

    (a) Location. The following area is a security zone: the waters of 
the Susquehanna River in the vicinity of the Three Mile Island 
Generating Station bounded by a line drawn from a point located at 
4009'14.74'' N, 07643'40.77'' W to 
4009'14.74'' N, 07643'42.22'' W, thence 
to 4009'16.67'' N, 07643'42.22''

[[Page 10618]]

W, thence to 4009'16.67'' N, 
07643'40.77'' W. 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.
    (d) Effective period. This section is effective from 5 p.m. 
(e.d.t.) on May 13, 2003, through July 31, 2004.

    Dated: February 25, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port Philadelphia.
[FR Doc. 04-5153 Filed 3-5-04; 8:45 am]
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