[Federal Register Volume 69, Number 147 (Monday, August 2, 2004)]
[Rules and Regulations]
[Pages 46101-46103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17528]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-116]
RIN 1625-AA87 (Formerly 1625-AA00)


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

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 Three Mile Island Generating 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 designated 
representative.

DATES: This rule is effective on August 1, 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 CGD05-03-116, and are 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 Jill Munsch, Coast Guard Marine Safety Office Philadelphia, at 
(215) 271-4889.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On September 16, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; Three Mile Island Generating Station, 
Susquehanna River, Dauphin County, PA'' in the Federal Register (68 FR 
54177). We received one letter commenting on the proposed rule. The 
letter requested clarification on the coordinates of the proposed 
security zone.
    In addition the following temporary final rule was published in the 
Federal Register:
    ``Security Zone; Three Mile Island Generating Station, Susquehanna 
River, Dauphin County, PA'' (68 FR 33399, June 4, 2003). This temporary 
final rule established a security zone around the Three Mile Island 
Generating Station, Susquehanna River, Dauphin County, PA. 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 
July 31, 2004 (69 FR 10616, March 8, 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

[[Page 46102]]

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 03-06 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 this 
security zone is necessary to protect the public, ports, and waterways 
of the United States from potential subversive acts. This security zone 
is similar to the existing temporary security zone established for 
waters around nuclear power facilities in Ocean County, NJ, (69 FR 
5282, February 4, 2004) and Salem County, NJ, (69 FR 5277, February 4, 
2004) which became effective final rules on March 5, 2004.

Discussion of Comments and Changes

    During the public comment period we received one comment requesting 
clarification of the coordinates concerning this security zone. This 
information was provided prior to publication of the extended temporary 
final rule. It did not impact the need for a public meeting. The only 
change to the proposed rule was to add the contact information for the 
Security Manager at Three Mile Island Nuclear Power Plant. A public 
meeting was considered, however no requests for a public meeting were 
received and no public meeting was held.
    The Captain of the Port met with representatives from 
Pennsylvania's Office of the Governor, Pennsylvania Office of Homeland 
Security, the Pennsylvania State Police and Pennsylvania Fish and Boat 
Commission regarding the patrol and enforcement feasibility by the 
state of Pennsylvania. The State has agreed in principle and signed a 
Memorandum of Agreement related to the security zone around Three Mile 
Island Generating Station, notify each agency of any proposed changes, 
periodic patrol assistance, enforcement and investigation into any 
security zone violations.
    Federal, state and local agencies will assist the Coast Guard in 
enforcing this security zone.

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). 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 small remote area surrounding the waterfront near the Three Mile 
Island Generating Station.

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 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.

[[Page 46103]]

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 effect 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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

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.

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.  165.554 to read as follows.


Sec.  165.554  Security Zone; Three Mile Island Generating Station, 
Susquehanna River, Dauphin 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 beginning at 40[deg]09'14.74'' N, 
076[deg]43'40.77'' W; thence to 40[deg]09'14.74'' N, 076[deg]43'42.22'' 
W, thence to 40[deg]09'16.67'' N, 076[deg]43'42.22'' W, thence to 
40[deg]09'16.67'' N, 076[deg]43'40.77'' W; thence back to the beginning 
point 40[deg]09'14.74'' N, 076[deg]43'40.77'' 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. The 
Security Manager at Three Mile Island can be contacted at (717) 948-
8208 or (717) 948-8039.
    (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, 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: July 20, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port Philadelphia.
[FR Doc. 04-17528 Filed 7-30-04; 8:45 am]
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