[Federal Register: August 2, 2004 (Volume 69, Number 147)]
[Rules and Regulations]
[Page 46101-46103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au04-5]
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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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