[Federal Register Volume 67, Number 25 (Wednesday, February 6, 2002)]
[Rules and Regulations]
[Pages 5480-5482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2821]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 01-020]
RIN 2115-AA97


Security Zone; San Diego, CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary security zone in 
the waters adjacent to the San Onofre Nuclear Generating Station in San 
Diego, CA. This action is necessary to ensure public safety and prevent 
sabotage or terrorist acts against the public and commercial structures 
and individuals near or in this structure. This security zone will 
prohibit all persons and vessels from entering, transiting through or 
anchoring within the security zone unless authorized by the Captain of 
the Port (COTP), or his designated representative.

DATES: This rule is effective from 6 p.m. (PDT) on October 25, 2001 to 
3:59 p.m. (PDT) on June 21, 2002.

ADDRESSES: Any comments and material received from the public, as well 
as documents indicated in this preamble as being available in the 
docket, are part of docket COTP San Diego 01-020, and are available for 
inspection or copying at U.S. Coast Guard Marine Safety Office San 
Diego, 2716 N. Harbor Dr., San Diego, CA 92101, between 9 a.m. and 4 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: PO Christopher Farrington, Marine 
Safety Office San Diego, at (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    As authorized by 5 U.S.C. 553, we did not publish a notice of 
proposed rulemaking (NPRM) for this regulation. In keeping with the 
requirements of 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM, and that under 5 U.S.C. 553 
(d)(3), good cause exists for making this regulation effective less 
than 30 days after publication in the Federal Register.
    On September 11, 2001, two commercial aircraft were hijacked from 
Logan Airport in Boston, Massachusetts and flown into the World Trade 
Center in New York, New York inflicting catastrophic human casualties 
and property damage. A similar attack was conducted on the Pentagon in 
Arlington, Virginia on the same day. National security officials warn 
that future terrorist attacks against civilian targets may be 
anticipated. A heightened level of security has been established 
concerning all vessels operating in the waters adjacent to the San 
Onofre Nuclear Generating Station area. This security zone is needed to 
protect the United States and more specifically the personnel and 
property of the San Onofre Nuclear Generating Station.
    The delay inherent in the NPRM process, and any delay in the 
effective date of this rule, is contrary to the public interest insofar 
as it may render individuals and facilities within and adjacent to the 
San Onofre Nuclear Generating Station vulnerable to subversive 
activity, sabotage or terrorist attack. The measures contemplated by 
the rule are intended to prevent future terrorist attacks against 
individuals and facilities within or adjacent to the San Onofre Nuclear 
Generating Station facility. Immediate action is required to accomplish 
this objective. Any delay in the effective date of this rule is 
impracticable and contrary to the public interest.

Background and Purpose

    On September 11, 2001, terrorists launched attacks on civilian and 
military targets within the United States killing large numbers of 
people and damaging properties of national significance. Vessels 
operating near the San Onofre Nuclear Generating Station present 
possible platforms from which individuals may gain unauthorized access 
to this installation, or launch terrorist attacks upon the waterfront 
structures and adjacent population centers.
    As part of the Diplomatic Security and Antiterrorism Act of 1986 
(Pub. L. 99-399), Congress amended The Ports and Waterways Safety Act 
(PWSA) to allow the Coast Guard to take actions, including the 
establishment of security and safety zones, to prevent or respond to 
acts of terrorism against individuals, vessels, or public or commercial 
structures. 33 U.S.C. 1226. The terrorist acts against the United 
States on September 11, 2001, have increased the need for safety and 
security measures on U.S. ports and waterways. In response to these 
terrorist acts, and in order to prevent similar occurrences, the Coast 
Guard is establishing a temporary security zone in the navigable waters 
of the United States adjacent to the San Onofre Nuclear Generating 
Station.
    This temporary security zone is necessary to provide for the safety 
and security of the United States of America and the people, ports, 
waterways and

[[Page 5481]]

properties within the San Onofre Nuclear Generating Station area. This 
temporary security zone, which prohibits all vessel traffic from 
entering, transiting or anchoring within a one nautical mile radius of 
San Onofre Nuclear Generating Station, is necessary for the security 
and protection of the San Onofre Nuclear Generating Station. This zone 
will be enforced by the official patrol (Coast Guard commissioned, 
warrant or petty officers) onboard Coast Guard vessels and patrol 
craft. The official patrol may also be onboard patrol craft and 
resources of any government agency that has agreed to assist the Coast 
Guard in the performance of its duties.
    Persons and vessels are prohibited from entering into this security 
zone unless authorized by the Captain of the Port or his designated 
representative. Each person and vessel in a security zone must obey any 
direction or order of the COTP. The COTP may remove any person, vessel, 
article, or thing from a security zone. No person may board, or take or 
place any article or thing on board any vessel in a security zone 
without the permission of the COTP.
    Pursuant to 33 U.S.C. 1232, any violation of the security zone 
described herein, is punishable by civil penalties (not to exceed 
$27,500 per violation, where each day of a continuing violation is a 
separate violation), criminal penalties (imprisonment for not more than 
6 years and a fine of not more than $250,000), in rem liability against 
the offending vessel, and license sanctions. Any person who violates 
this regulation, using a dangerous weapon, or who engages in conduct 
that causes bodily injury or fear of imminent bodily injury to any 
officer authorized to enforce this regulation, also faces imprisonment 
up to 12 years (class C felony).

Regulatory Evaluation

    This temporary final 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 Transportation (DOT) (44 FR 11040, February 26, 1979).
    Due to the recent terrorist actions against the United States the 
implementation of this security zone is necessary for the protection of 
the United States and its people. Because these security zones are 
established in an area near the San Onofre Nuclear Generating Station 
that is seldom used, the Coast Guard expects the economic impact of 
this rule to be so minimal that full regulatory evaluation under 
paragraph 10(e) of the regulatory policies and procedures of DOT is 
unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard considered whether this rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' includes small businesses, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations less than 
50,000.
    This security zone will not have a significant impact on a 
substantial number of small entities because the portion of the 
security zone that affects the San Onofre Nuclear Generating Station 
area is infrequently transited. Therefore, the Coast Guard certifies 
under 5 U.S.C. 605(b) that this temporary final rule will not have a 
significant economic impact on a substantial number of small entities.

Assistance for Small Entities

    In accordance with Sec. 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
offers to assist small entities in understanding the rule so that they 
can better evaluate its effects on them and participate in the 
rulemaking process. If your small business or organization is affected 
by this rule and you have questions concerning its provisions or 
options for compliance, please contact Petty Officer Chris Farrington, 
Marine Safety Office San Diego, at (619) 683-6495.
    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. 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 and have 
determined that this rule 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 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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That

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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 considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph (34), of Commandant 
Instruction M16475.1D, this rule, which establishes a security zone, is 
categorically excluded from further environmental documentation. A 
``Categorical Exclusion Determination'' is available in the docket for 
inspection or copying where indicated under ADDRESSES.

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 amends 
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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.


    2. Add new Sec. 165.T11-048 to read as follows:


Sec. 165.T11-048  Security Zone: Waters adjacent to San Onofre

Nuclear Generating Station San Diego, CA.

    (a) Location: San Onofre Nuclear Generating Station. This security 
zone encompasses waters within a one nautical mile radius of San Onofre 
Nuclear Generating Station that is centered at the following 
coordinate: latitude 33 deg. 22' 30" N, longitude 117 deg. 33' 50" W.
    (b) Effective dates. These security zones will be in effect from 6 
p.m. (PDT) on October 25, 2001 to 3:59 p.m. (PDT) on June 21, 2002. If 
the need for these security zones ends before the scheduled termination 
time and date, the Captain of the Port will cease enforcement of the 
security zones and will also announce that fact via Broadcast Notice to 
Mariners and Local Notice to Mariners.
    (c) Regulations. This section is also issued under section 7 of the 
Ports and Waterways Safety Act (33 U.S.C. 1226). In accordance with the 
general regulations in Sec. 165.33 of this part, no person or vessel 
may enter or remain in the security zone established by this temporary 
section, unless authorized by the Captain of the Port, or his 
designated representative. All other general regulations of Sec. 165.33 
of this part apply in the security zone established by this temporary 
section. Mariners requesting permission to transit through the security 
zone must request authorization to do so from the Captain of the Port, 
who may be contacted through Coast Guard Activities San Diego on VHF-FM 
Channel 16.

    Dated: October 25, 2001.
S. P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 02-2821 Filed 2-5-02; 8:45 am]
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