[Federal Register Volume 67, Number 89 (Wednesday, May 8, 2002)]
[Proposed Rules]
[Pages 30846-30848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11492]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD09-02-011]
RIN 2115-AA97


Security Zones; Captain of the Port Toledo Zone, Lake Erie

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish two permanent security 
zones on the navigable waters of Lake Erie in the Captain of the Port 
Toledo zone. These security zones are necessary to protect the Enrico 
Fermi 2 Nuclear Power Station and the Davis Besse Nuclear Power Station 
from possible acts of terrorism. These security zones are intended to 
restrict vessel traffic from a portion of Lake Erie off the Enrico 
Fermi 2 Nuclear Power Station and the Davis Besse Nuclear Power 
Stations.

DATES: Comments and related material must reach the Coast Guard on or 
before June 7, 2002.

ADDRESSES: You may mail comments to U.S. Coast Guard Marine Safety 
Office Toledo, 420 Madison Ave, Suite 700, Toledo, Ohio 43604. The 
telephone number is (419) 418-6050. Marine Safety Office Toledo 
maintains the public docket for this rulemaking. Comments and materials 
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 between 8 a.m. 
and 4 p.m., Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: LT Herb Oertli, Chief of Port 
Operations, Marine Safety Office, 420 Madison Ave, Suite 700, Toledo, 
Ohio 43604; (419) 418-6050.

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 (CGD09-02-
011), indicate the specific section of this document to 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 
they 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 proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to U.S. Coast Guard Marine Safety 
Office Toledo 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 later notice in the 
Federal Register.

Background and Purpose

    On September 11, 2001, the United States was the target of 
coordinated attacks by international terrorists resulting in the 
destruction of the World Trade Center, significant damage to the 
Pentagon, and tragic loss of life. National security and intelligence 
officials warn that future terrorists attacks are likely.
    We propose to establish a permanent security zone off the waters of 
Enrico Fermi 2 Nuclear Power Station, Newport, Michigan. This security 
zone

[[Page 30847]]

would include waters and adjacent shoreline within a boundary 
commencing at 41 deg.58.4' N, 083 deg.15.4' W; then northeast to 
41 deg.58.5' N, 083 deg.15.0' W; then southeast to 41 deg.58.2' N, 
083 deg.13.7' W; then south to 41 deg.56.9' N, 083 deg.13.8' W; then 
west to 41 deg.56.9' N, 083 deg.15.2' W; then back to the starting 
point at 41 deg.58.4' N, 083 deg.15.4' W.
    Our proposed rule would also establish a permanent security zone 
off the waters of Davis Besse Nuclear Power Station, Port Clinton, 
Ohio. This security zone would include waters and adjacent shoreline 
within a boundary commencing at 41 deg.36.3 N, 083 deg.04.9' W; then 
north to 41 deg.37.0' N, 083 deg.03.9' W; east to 41 deg.35.9' N, 
083 deg.02.5' W; southwest to 41 deg.35.4' N, 083 deg.03.7' W; then 
back to the starting point 41 deg.36.3' N, 083 deg.04.9' W.
    These proposed security zones are necessary to protect the public, 
facilities, and the surrounding area from possible sabotage or other 
subversive acts. All persons other than those approved by the Captain 
of the Port Toledo, or his authorized representative, are prohibited 
from entering or moving within these zones. The Captain of the Port 
Toledo may be contacted via VHF Channel 16 for further instructions 
before transiting through the restricted area. The Captain of the Port 
Toledo's on-scene representative will be the patrol commander. In 
addition to publication in the Federal Register, the public will be 
made aware of the existence of this security zone, exact location and 
the restrictions involved via Local Notice To Mariners and a Broadcast 
Notice to Mariners.

Discussion of Proposed Rule

    Following the catastrophic nature and extent of damage realized 
from the attacks of September 11, this proposed rulemaking is necessary 
to protect the national security interests of the United States against 
having these nuclear power plants become targets of terrorists.
    On October 12, 2001 we published a temporary final rule 
establishing a security zone on the waters of Lake Erie around the 
Enrico Fermi 2 Nuclear Power Station, (66 FR 52039), as well as a 
security zone on Lake Erie around Davis Besse Nuclear Power Plant (66 
FR 52038). We propose to establish permanent security zones in place of 
those temporary security zones. The proposed security zones in this 
regulation are smaller in size compared to those originally created on 
October 12, 2001 in the temporary final rule.

Regulatory Evaluation

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 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 exempted it from 
review 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). The Coast Guard expects the economic 
impact of this proposal to be so minimal that a 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), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    These proposed security zones will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. Our proposed rule will not obstruct the regular flow of 
commercial traffic and will allow vessel traffic to pass around the 
security zone.
    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 proposed 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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact the office listed 
in Addresses in this preamble.
    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 proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    We have analyzed this proposed rule under Executive Order 13132, 
Federalism, and have determined that this proposed rule would not have 
implications for federalism under that Order.

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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not an

[[Page 30848]]

economically significant rule and would not create an environmental 
risk to health or risk to safety that might disproportionately affect 
children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.lD, this rule 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 record 
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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.


Sec. 165.T09-135  [Removed]

    2. Remove Sec. 165.T09-135.


Sec. 165.T09-136  [Removed]

    3. Remove Sec. 165.T09-136.
    4. Add Sec. 165.915 to read as follows:


Sec. 165.915  Security zones; Captain of the Port Toledo Zone, Lake 
Erie.

    (a) Security zones. The following areas are security zones:
    (1) Enrico Fermi 2 Nuclear Power Station. All waters and adjacent 
shoreline encompassed by a line commencing at 41 deg.58.4' N, 
083 deg.15.4' W; then northeast to 41 deg.58.5' N, 083 deg.15.0' W; 
then southeast to 41 deg.58.2' N, 083 deg.13.7' W; then south to 
41 deg.56.9', N 083 deg.13.8' W; then west to 41 deg.56.9' N, 
083 deg.15.2' W; then back to the starting point at 41 deg.58.4' N, 
083 deg.15.4' W (NAD 83).
    (2) Davis Besse Nuclear Power Station. All waters and adjacent 
shoreline encompassed by a line commencing at 41 deg.36.3' N, 
083 deg.04.9' W; north to 41 deg.37.0' N, 083 deg.03.9' W; east to 
41 deg.35.9' N, 083 deg.02.5' W; southwest to 41 deg.35.4' N, 
083 deg.03.7' W; then back to the starting point 41 deg.36.3' N, 
083 deg.04.9' W. (NAD 83).
    (b) Regulations. (1) In accordance with Sec. 165.33, entry into 
this zone is prohibited unless authorized by the Coast Guard Captain of 
the Port Toledo. Section 165.33 also contains other general 
requirements.
    (2) Persons desiring to transit through either of these security 
zones, prior to transiting, must contact the Captain of the Port Toledo 
at telephone number (419) 418-6050, or on VHF/FM channel 16 and request 
permission. If permission is granted, all persons and vessels shall 
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 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.

    Dated: April 26, 2002.
D.L. Scott,
Commander, U.S. Coast Guard, Captain of the Port Toledo.
[FR Doc. 02-11492 Filed 5-7-02; 8:45 am]
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