[Federal Register Volume 67, Number 61 (Friday, March 29, 2002)]
[Rules and Regulations]
[Pages 15117-15120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7713]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP Los Angeles-Long Beach 02-006]
RIN 2115-AA97


Security Zone; Waters Adjacent to Diablo Canyon Nuclear Power 
Plant, Avila Beach, CA

AGENCY: Coast Guard, DOT.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard has established a security zone in the waters 
adjacent to Diablo Canyon Nuclear Power Plant near Avila Beach, 
California. This action is necessary to ensure public safety and 
prevent sabotage or terrorist acts against the power plant and 
individuals near or in the power plant facilities and the surrounding 
communities. Entry into this zone will be prohibited unless 
specifically authorized by the Captain of the Port Los Angeles-Long 
Beach.

DATES: This interim rule is effective at 3:59 p.m. (PDT) on March 29, 
2002. Comments and related material must reach the Coast Guard on or 
before May 28, 2002.

ADDRESSES: You may mail comments and related material to U.S. Coast 
Guard Marine Safety Office/Group Los Angeles-Long Beach, Waterways 
Management Division, 1001 S. Seaside Avenue, Building 20, San Pedro, 
California, 90731. The Waterways Management Division 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 Waterways Management 
Division between 8 a.m. and 4 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Lieutenant Junior Grade Rob Griffiths, Assistant Chief, Waterways 
Management Division, (310) 732-2020.

SUPPLEMENTARY INFORMATION:

Request for Comments

    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 (COTP Los 
Angeles-Long Beach 02-006), indicate the specific section of this 
document to

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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 that your submission 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 rule in 
view of them. In our final rule, we will include a concise general 
statement of the comments received and identify any changes from the 
rule based on the comments.

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 Waterways Management Division 
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 separate notice in the Federal 
Register.

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
rulemaking. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Due to the terrorist attacks 
on September 11, 2001 and the warnings given by national security and 
intelligence officials, there is an increased risk that further 
subversive or terrorist activity may be launched against the United 
States. A heightened level of security has been established around 
Diablo Canyon Nuclear Power Plant. This security zone is needed to 
protect the United States and more specifically the people, waterways, 
and properties near Diablo Canyon. A Temporary Final Rule (TFR) has 
been in effect protecting this area since 4:00 p.m. (PDT) on September 
28, 2001 and will be expiring 3:59 p.m. (PDT) on March 29, 2002. In 
order for the enforcement of the security zone to continue without 
interruption, an interim rule with request for comments will be used 
instead of the notice of proposed rulemaking procedure. 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 Diablo Canyon Nuclear 
Power Plant 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 Diablo Canyon Nuclear Power Plant. Immediate action is 
required to accomplish these objectives and necessary to continue 
safeguarding the Diablo Canyon Nuclear Power Plant and its surrounding 
areas.
    For the reasons stated in the paragraph above, under 5 U.S.C. 
553(d)(3), the Coast Guard finds that good cause exists for making this 
rule effective in less than 30 days after publication in the Federal 
Register.

Background and Purpose

    On September 11, 2001, terrorists launched attacks on commercial 
and public structures--the World Trade Center in New York and the 
Pentagon in Arlington, Virginia--killing large numbers of people and 
damaging properties of national significance. There is an increased 
risk that further subversive or terrorist activity may be launched 
against the United States based on warnings given by national security 
and intelligence officials. The Federal Bureau of Investigation (FBI) 
has issued warnings on October 11, 2001 and February 11, 2002 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Afghanistan have 
made it prudent for important U.S. facilities to be on a higher state 
of alert because Osama Bin Ladin and his Al Qaeda organization, and 
other similar organizations, have publicly declared an ongoing 
intention to conduct armed attacks on U.S. interests worldwide. Due to 
these heightened security concerns, and the catastrophic impact a 
terrorist attack on a nuclear power plant would have on the surrounding 
area and communities, security zones are prudent for navigable 
waterways adjacent to these nuclear power plants. To mitigate the risk 
of terrorist actions against important U.S. infrastructure, the Coast 
Guard has increased safety and security measures on the waterfronts of 
nuclear power plants by establishing security zones to aid in the 
waterside protection of these facilities. Vessels operating near the 
Diablo Canyon Nuclear Power Plant present possible platforms from which 
individuals may gain unauthorized access to the power plant facilities 
or launch terrorist attacks upon the waterfront structures and adjacent 
population centers. As a result, the Coast Guard is taking measures to 
prevent vessels or persons from accessing the navigable waters close to 
the Diablo Canyon Nuclear Power Plant.
    This regulation establishes a security zone in the waters of the 
Pacific Ocean within a 2,000 yard (approximately one nautical mile) 
radius of Diablo Canyon Nuclear Power Plant centered at position 
35 deg.12'23" N, 120 deg.51'23" W. These coordinates are based upon the 
North American Datum of 1983 (NAD 83). Diablo Canyon Nuclear Power 
Plant is located adjacent to the Pacific Ocean along California's 
Central Coast near Avila Beach in San Luis Obispo County. Extensive 
land-based security measures are already in place to protect Diablo 
Canyon Nuclear Power Plant from sabotage. Establishing a security zone 
in the waters adjacent to the power plant will aid in the waterside 
protection of the facility.
    This rulemaking will make permanent the temporary security zone 
established on October 2, 2001, which was published in the Federal 
Register (66 FR 53713, Oct. 24, 2001) under temporary section 165.T11-
055(a)(3) of Title 33 of the Code of Federal Regulations (CFR). In that 
rulemaking, the Coast Guard established a security zone encompassing 
the waters within a one nautical mile radius of Diablo Canyon Nuclear 
Power Plant, which is essentially the same security zone that we are 
now establishing permanently.

Discussion of Interim Rule

    The Coast Guard has established a security zone on the waters 
within a 2,000 yard radius of Diablo Canyon Nuclear Power Plant 
centered at position 35 deg.12'23" N, 120 deg.51'23" W. [Datum: NAD 
83]. This security zone is needed for national security reasons to 
protect the power plant, the public, transiting vessels, and adjacent 
waterside facilities from potential subversive acts, accidents, or 
other events of a similar nature. Entry into this zone will be 
prohibited unless specifically authorized by the Captain of the Port.
    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. In addition to the authority of section 12 of the PWSA (33 
U.S.C. 1231), the authority for this rule includes section 7 of the 
PWSA (33 U.S.C. 1226).
    Vessels or persons violating this section will be subject to the 
penalties set forth in section 13 of the PWSA (33 U.S.C. 1232). 
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

[[Page 15119]]

(imprisonment up to 6 years and a maximum fine of $250,000), and in rem 
liability against the offending vessel. Any person who violates this 
section, 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. The Captain of the Port will enforce this zone and may enlist 
the aid and cooperation of any Federal, State, county, municipal, and 
private agency to assist in the patrol and enforcement of 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. It has not been reviewed by the Office of 
Management and Budget 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).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT is unnecessary. The size of the zone 
encompasses a small portion of the Pacific Ocean located along a jagged 
and rocky coastline. Due to the naturally hazardous nature of the 
coastline, we expect most vessels to remain well clear and transit 
around this zone for safety of navigation reasons. In addition, vessels 
may be allowed to enter this zone on a case-by-case basis with 
permission of the Captain of the Port.

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. 
This rule does not require a general notice of proposed rulemaking and, 
therefore, is exempt from the requirements of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
potential economic impact on small entities.
    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. We expect this rule will affect the following entities, some 
of which may be small entities: the owners and operators of private and 
commercial vessels intending to transit or anchor in the Pacific Ocean 
near Avila Beach, California. The impact to these entities would not, 
however, be significant since this zone encompasses a small portion of 
the ocean located along a jagged and rocky portion of the coastline. In 
addition, vessels may be allowed to enter this zone on a case-by-case 
basis with permission of the Captain of the Port.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this 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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. 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 Rob 
Griffiths, Assistant Chief, Waterways Management Division, (310) 732-
2020.
    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 an expenditure, the 
effects of this rule are discussed 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 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

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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)(g), of Commandant 
Instruction M16475.1D, this rule is categorically excluded from further 
environmental documentation because it establishes a security zone. A 
``Categorical Exclusion Determination'' is 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.

    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 Sec. 165.1155 to read as follows:


Sec. 165.1155  Security Zone; Diablo Canyon Nuclear Power Plant, Avila 
Beach, California.

    (a) Location. The following area is a security zone:
    All waters of the Pacific Ocean, from surface to bottom, within a 
2,000 yard radius of Diablo Canyon Nuclear Power Plant centered at 
position 35 deg.12'23" N, 120 deg.51'23" W. [Datum: NAD 83].
    (b) Regulations.
    (1) In accordance with the general regulations in Sec. 165.33 of 
this part, entry into or remaining in this zone is prohibited unless 
authorized by the Coast Guard Captain of the Port, Los Angeles-Long 
Beach, or his or her designated representative.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 1-800-221-8724 or 
on VHF-FM channel 16 (156.8 MHz). If permission is granted, all persons 
and vessels must comply with the instructions of the Captain of the 
Port or his or her designated representative.
    (c) Authority. In addition to 33 U.S.C. 1231, the authority for 
this section includes 33 U.S.C. 1226.

    Dated: March 22, 2002.
J.M. Holmes,
Captain, U.S. Coast Guard, Captain of the Port, Los Angeles-Long Beach.
[FR Doc. 02-7713 Filed 3-28-02; 8:45 am]
BILLING CODE 4910-15-U