[Federal Register Volume 67, Number 104 (Thursday, May 30, 2002)]
[Rules and Regulations]
[Pages 37689-37693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13550]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-002]

RIN 2115-AA97


Safety and Security Zones; Pilgrim Nuclear Power Plant, Plymouth, 
MA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing safety and security zones 
around the Pilgrim Nuclear Power Plant in Cape Cod Bay, Plymouth, MA. 
The safety and security zones will close certain waters of Cape Cod Bay 
near the Pilgrim Nuclear Power Plant and land adjacent to those waters. 
The safety and security zones prohibit entry into or

[[Page 37690]]

movement within a portion of Cape Cod Bay and adjacent shore areas and 
are needed to ensure public safety and prevent sabotage or terrorist 
acts.

DATES: This rule is effective June 16, 2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at Marine Safety Office Boston, 455 Commercial 
Street, Boston, MA between the hours of 8 a.m. and 3 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Dave Sherry, Marine Safety 
Office Boston, Waterways Safety and Response Division, at (617) 223-
3030.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On January 29, 2002, we published a notice of proposed rulemaking 
(NPRM) for this regulation in the Federal Register (67 FR 4218). The 
comment period for that NPRM expired on April 15, 2002. The Coast Guard 
is now proceeding to implement a final rule taking into account all 
comments received.
    Good cause exists for making this regulation effective in less than 
30 days after publication in the Federal Register. Any delay 
encountered in this regulation's effective date would be unnecessary 
and contrary to public interest. Based upon comments received and 
evaluations of the proposed rulemaking and the hardships it threatened 
to impose on local waterway users, the zones have been reduced to less 
than one half of their original sizes in this final rule. As discussed 
below, the new zone descriptions will allow waterway users access to 
much more area than the previously proposed zones while still providing 
adequate protection to the Plant.
    The public has been dealing with larger zones since September 2002, 
and has been anticipating the implementation of a final rule to 
coincide with the expiration on June 15, 2002 of current temporary 
safety and security zones around the Plant. Their comments indicate 
they want safety and security zones around the plant, but want smaller 
boundaries.
    It is necessary for this zone to come into effect on June 16, 2002 
to ensure there is no gap between its implementation and the expiration 
of the temporary safety and security zones published January 14, 2002 
currently in effect around the Plant (67 FR 1607). If a gap between 
rulemakings occurs, the Coast Guard will have no viable enforcement 
options around the Plant waterfront during this period.
    Because this final rule significantly decreases the impact on the 
public by implementing smaller zones, and because of the need to ensure 
there is no gap between the expiration of temporary safety and security 
zones published in January (67 FR 1607) that expire on June 15, 2002, 
and the implementation of this rulemaking, it is necessary for this 
regulation to become effective on June 16, 2002 in the interest of 
public safety and security. The public will still have substantial 
advance notice of this final rule before it becomes effective.

Background and Purpose

    In light of terrorist attacks on New York City and Washington D.C. 
on September 11, 2001, safety and security zones are being established 
to safeguard the Pilgrim Nuclear Power Plant, persons at the facility, 
the public and surrounding communities from sabotage or other 
subversive acts, accidents, or other events of a similar nature. The 
Pilgrim Nuclear Power Plant presents a possible target of terrorist 
attack, due to the potential catastrophic impact nuclear radiation 
would have on the surrounding area, its large destructive potential if 
struck, and its proximity to a population center. These safety and 
security zones prohibit entry into or movement within the specified 
areas.
    This rulemaking establishes security and safety zones having 
identical boundaries delineated as follows: all waters of Cape Cod Bay 
and land adjacent to those waters enclosed by a line beginning at 
position 41[deg]57[min]5[sec] N, 070[deg]34[min]42[sec] W; then running 
southeast to position 41[deg]56[min]42[sec] N, 070[deg]41[min]6[sec] W; 
then running southwest to position 41[deg]56[min]30[sec] N, 
070[deg]34[min]21[sec] W; then running northwest to position 
41[deg]56[min]51[sec] N, 070[deg]34[min]55[sec] W; then running 
northeast back to position 41[deg]57[min]5[sec] N, 
070[deg]34[min]42[sec] W.
    No person or vessel may enter or remain in the prescribed safety 
and security zones at any time without the permission of the Captain of 
the Port. Each person or vessel in a safety and security zone shall 
obey any direction or order of the Captain of the Port or designated 
Coast Guard representative on-scene. The Captain of the Port may take 
possession and control of any vessel in a security zone and/or remove 
any person, vessel, article or thing from a security zone. No person 
may board, take or place any article or thing on board any vessel or 
waterfront facility in a security zone without permission of the 
Captain of the Port. These regulations are issued under authority 
contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.
    Any violation of any safety or security zone described herein, is 
punishable by, among others, civil penalties (not to exceed $25,000 per 
violation, where each day of a continuing violation is a separate 
violation), criminal penalties (imprisonment for not more than 10 years 
and a fine of not more than $100,000), in rem liability against the 
offending vessel, and license sanctions.

Discussion of Comments and Changes Implemented in the Final Rule

    The Coast Guard received 23 oral comments at one public meeting and 
17 written comments during the comment period for the NPRM. All 
comments received were considered in the development of this final 
rule. Changes implemented in the final rule are the result of inter-
Coast Guard evaluations of how to better employ and enforce the 
regulation and comments and recommendations of stakeholders in the COTP 
Boston zone. These stakeholders include the maritime industry, 
commercial and recreational fishermen, the maritime law community, and 
local townspeople.
    As a result of the comments, review, and public recommendations the 
zones' delineation will change from the following: all waters of Cape 
Cod Bay and land adjacent to those waters enclosed by a line beginning 
at position 41[deg]57[min]30[sec] N, 070[deg]34[min]36[sec] W; then 
running southeast to position 41[deg]56[min]36[sec] N, 
070[deg]33[min]30[sec] W; then running southwest to position 
41[deg]56[min]28[sec] N, 070[deg]34[min]38[sec] W; then running 
northwest to position 41[deg]56[min]50[sec] N, 070[deg]34[min]58[sec] 
W; then running northeast back to position 41[deg]57[min]30[sec] N, 
070[deg]34[min]36[sec] W; to the following revised coordinates: all 
waters of Cape Cod Bay and land adjacent to those waters enclosed by a 
line beginning at position 41[deg]57[min]5[sec] N, 
070[deg]34[min]42[sec] W; then running southeast to position 
41[deg]56[min]40.5[sec] N, 070[deg]34[min]4.5[sec] W; then running 
southwest to position 41[deg]56[min]32[sec] N, 070[deg]34[min]14[sec] 
W; then running northwest to position 41[deg]56[min]55.5[sec] N, 
070[deg]34[min]52[sec] W; then running northeast back to position 
41[deg]57[min]5[sec] N, 070[deg]34[min]42[sec] W.
    These changes remove the majority of the Rocky Point shoal area and 
all of the White Horse Rocks area from the zones, and reduce the 
approximate size of the zones by more than half. The specific comment 
topics and resultant changes (if any) are addressed below.

I. Adequate Protection Can Be Provided By Smaller Zones

    The Coast Guard received comments from both the public and Pilgrim 
Nuclear Power Plant advocating smaller zones. Pilgrim Nuclear Power 
Plant

[[Page 37691]]

conducted evaluations based upon Nuclear Regulatory Commission data and 
concluded that zones approximately 500 yards offshore from the plant 
would provide adequate protection against waterside threats. Based upon 
this evaluation and the hardships (as outlined below) the proposed 
zones threatened to impose on local waterway users, the zones have been 
reduced in size as described above in this discussion of comments and 
inthe Background and Purpose section.

II. The Size of the Proposed Zones Would Place an Excessive Burden on 
the Commercial Lobster Industry By Excluding Fishermen From Frequently 
Fished Areas, Forcing Fishermen to Crowd Into Other Areas and Reducing 
Their Income

    Many comments related concerns that the proposed zones' boundaries 
would exclude lobstermen from highly productive lobstering areas, 
namely the White Horse Rocks and the Rocky Point shoal areas. At the 
time the NPRM was issued the Coast Guard was still investigating the 
potential impacts of the zones on the commercial fishing community. 
Upon consulting with local and state lobsterman officials as well as 
the Massachusetts Division of Marine Fisheries, it was determined that 
a significant amount of the lobster landings for Plymouth, MA, come 
from these areas and a significant amount of lobstermen depend upon 
those areas for their livelihoods. The revised and reduced boundaries, 
as supported by the studies conducted by the Pilgrim Plant and Nuclear 
Regulatory Commission, will allow the lobstermen to fish the vast 
majority of the highly productive lobstering areas from which they 
would have been originally excluded. A small portion of Rocky Point 
shoal area must remain inside the revised boundaries due to its 
proximity to the Pilgrim Plant.

III. The Regulation May Affect Private Boat Ramps on the Adjacent 
Priscilla Beach and Access to This Beach. It May Also Affect Private 
Property Abutting the Pilgrim Nuclear Power Plant

    Some comments raised concerns regarding the extent of the proposed 
zones' boundaries, and that they might extend over public beaches, 
property, and boat ramps. The boundaries of the zones (both proposed 
and revised) at no time extended over any public beaches, private 
property, or public or private boat ramps outside Pilgrim Nuclear Power 
Plant property. As a result, we made no changes in response to these 
comments.

IV. The Proposed Zones Prevent Recreational Boats From Using the Safest 
Transit Path To and From Priscilla Beach Between White Horse Rocks and 
the Beach

    Many comments stated concerns that proposed zones extended far 
enough offshore that it would force recreational boats to go around 
White Horse Rocks to transit to and from Priscilla Beach. They stated 
this could be dangerous in the instance boats needed to quickly return 
to shore due to a storm. The revised boundaries will allow recreational 
boaters to safely utilize their desired transit path between the zones 
and the White Horse Rocks area.

V. Additional Public Meetings and an Extension of the Comment Period 
Are Needed To Allow More Involvement of the Priscilla Beach Residents, 
and To Determine the Economic Impacts on the Local Lobstermen

    A few comments requested extension of the comment period and 
additional public meetings. The comment period for the proposed rule 
was nearly 3 months long and numerous comments from Priscilla Beach 
residents were received. A public meeting was held with 87 
participants, some of whom were Priscilla Beach residents. Due to the 
fact that the zones will not encompass any of Priscilla Beach, its 
adjacent private property, or the surrounding public and private boat 
ramps, and the fact that impacts on recreational boat transits to and 
from the beach will be negligible under the revised boundaries, the 
Coast Guard did not extend the comment period or schedule another 
public meeting.
    In addition, lobstermen wished to have a separate meeting with the 
Coast Guard to determine the potential income loss they might 
experience due to the implementation of the zones. It was determined at 
the February 6, 2002 public meeting that the comment submission process 
provided a better avenue to document and address these issues, since 
lobstermen could easily determine their incomes and potential losses on 
their own without Coast Guard aid. All lobstermen who felt their 
livelihoods might be impacted by the zones were asked to submit 
comments supporting these claims during the comment period. The Coast 
Guard received four comments specifically detailing potential economic 
losses and the amount of lobstermen who would be impacted by the 
proposal.

VI. Safety and Security Zones Are Not Needed Due to the Large Number of 
Local Mariners Watching the Water as They Operate Off of the Pilgrim 
Plant

    Many comments were from local mariners convinced that the zones are 
not necessary because the local mariners know each other in the 
vicinity of the plant, and would notice anything or anyone out of the 
ordinary. While the Coast Guard appreciates reports of suspicious 
activity from the public, such a public ``neighborhood watch'' group 
would not serve the same purpose, nor offer the same protection, as the 
safety and security zones. Local mariners cannot prevent potential 
terrorists from entering the area, they cannot board suspicious 
vessels, and they cannot remove suspicious persons or vessels from the 
area, and thus cannot be used in place of these safety and security 
zones.

VII. A Check-In System Should Be Established To Let People In and Out 
of the Zones

    Some comments advocated a system to allow mariners to check in and 
out of the zones. Many systems were proposed including coded gates, 
tracking devices, and special identification and call in procedures, 
among others. A check-in procedure was established for the small number 
of commercial lobstermen whose livelihoods were effected by the 
temporary zones around the Plant. However, we feel such a system would 
be unpractical for recreational boats due to their large numbers. In 
addition, the need for any such system at this time is unnecessary 
considering the new boundaries of the zones, which will allow mariners 
to fish and transit within approximately 500 yards of the plant.

VIII. Buoys or Other Markers May Be Needed To Delineate the Zones

    Some comments stated that markers to delineate the zones were 
essential. Others stated they did not want markers that would cause too 
much noise or be lit too brightly (such as buoys). The purpose of this 
regulation is solely to establish zones, it will not be used to mandate 
marking systems for the zones. However, the Coast Guard has determined 
marking of the zones may be beneficial and, along with the Pilgrim 
Power Plant, is considering whether to permit marking the zones with 
private aids to navigation. Markings placed, if any, will be certified 
by the First Coast Guard District Aids to Navigation Office, and their 
lights and sounds will not negatively impact communities on nearby 
Priscilla Beach.

[[Page 37692]]

IX. The Zones Should Be Made ``Impenetrable'' With Physical Barriers 
Such as Submarine Nets and Defense Systems Such as Missiles

    Some comments sought the establishment of additional defense 
systems including physical barriers and anti-aircraft systems. The 
Coast Guard is currently in consultation with the Plant on static 
enforcement measures. However, it is beyond the scope of this 
rulemaking to address landside and air security improvements, or 
specify enforcement techniques. Thus, no action will be taken on 
comments within these categories.

X. The Public Wants To Know Who Will Enforce the Zones, When They Will 
Be There, and How Violators Will Be Dealt With

    Some comments sought information on the enforcement of the zones. 
Coast Guard cutters, small boats, and air assets will enforce the zones 
with the assistance of others, including but not limited to, 
Massachusetts State Police and Environmental Police, and local 
harbormasters. In addition, Pilgrim Plant security will report any 
suspicious activity immediately to the Coast Guard.
    Patrolling of the zones will be varied. Patrol schedules are a 
matter of agency discretion and will not be divulged to the public in 
advance. Violators of the zones will be subject to all provisions of 
applicable law and at a minimum will be escorted out of the zones by 
the Coast Guard or representative on scene. Depending on the 
circumstances, zone violators may receive any penalty up to the maximum 
penalties prescribed under the Background and Purpose section.

XI. The Public Wants To Know What Types of Vessels or Attacks Could 
Damage the Plant

    Some comments sought information on what types of vessels could 
damage the plant. Potentially any vessel or person that could get 
inside these zones could damage the Pilgrim Nuclear Power Plant. This 
is why these zones are needed to prevent people and vessels from 
approaching the plant waterfront, and access to the zones will not be 
allowed without COTP Boston, MA approval.

XII. Small Recreational Vessels Traveling Far Offshore To Avoid 
Entering the Plant May Be Forced Into Rough Seas.

    Some comments expressed concerns that the size of the proposed 
zones would force small recreational boats far offshore as they 
transited around it, posing a danger even in moderate weather. The 
revised boundaries of the zones will allow mariners to use 
traditionally available routes and transit much closer to shore as they 
pass across the front of the plant, as close as approximately 500 
yards.

XIII. The Coast Guard Needs To Ensure Strict Interpretation of the 
Boundaries of the Zones

    Some comments expressed concerns that local and state law 
enforcement assisting the Coast Guard might misinterpret the boundaries 
of the zones or not uniformly enforce them. The Coast Guard has a long 
history of working with local and state authorities in the enforcement 
of safety and security zones. The public can be certain that any agency 
assisting the Coast Guard will appropriately enforce the boundaries of 
the zones.

XIV. Allowances Should Be Made for the Event a Boat or Fishing Gear Is 
Forced Into the Zones By Inclement Weather

    Some comments sought information on how fishermen could retrieve 
gear that happened to drift into the zones, or what would happen to a 
vessel if it were accidentally forced into the zones by bad weather. 
The Coast Guard understands that accidental or unforeseen situations 
sometimes arise. The Coast Guard will make allowances for vessels to 
enter the zones to retrieve gear, and will not typically take 
enforcement action against vessels forced into the zones by inclement 
weather, except to remove them from the zones. In all cases, it is 
expected that mariners who have a legitimate need to enter the zones 
will request permission in advance of entering.

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 Transportation 
(DOT) (44 FR 11040, February 26, 1979).
    The Coast Guard expects the economic impact of this rule to be 
minimal enough that a full regulatory evaluation under paragraph 10e of 
the regulatory policies and procedures of DOT is unnecessary. The 
effect of this regulation will not be significant because there is 
ample room for vessels to navigate around the zones in Cape Cod Bay, 
and due to the reasons enumerated under the Discussion of Comments 
section.

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'' 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 rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule will affect the following entities, some of 
which may be small entities: the owners or operators of vessels 
intending to transit, fish, or anchor in a portion of Cape Cod Bay. For 
the reasons enumerated in the Discussion of Comments section above, 
these safety and security zones will not have a significant economic 
impact on a substantial number of small entities.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard 
wants to assist small entities in understanding this final rule so that 
they can better evaluate its effects on them and participate in the 
rulemaking. If your small business or organization would be affected by 
this final rule and you have questions concerning its provisions or 
options for compliance, please call Lieutenant Dave Sherry, Marine 
Safety Office Boston, at (617) 223-3000.
    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 would call for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

[[Page 37693]]

Federalism

    The Coast Guard analyzed this rule under Executive Order 13132, 
Federalism, and has determined that this rule does 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) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those costs. This rule would not impose an unfunded mandate.

Taking of Private Property

    This rule would 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

    The Coast Guard 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 
pose 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. A 
rule with tribal implications has 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.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under figure 2-1, (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 where indicated under ADDRESSES.

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.

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 [sect] 165.115 to read as follows:


[sect] 165.115  Safety and Security Zones; Pilgrim Nuclear Power Plant, 
Plymouth, Massachusetts.

    (a) Location. All waters of Cape Cod Bay and land adjacent to those 
waters enclosed by a line beginning at position 41[deg]57'5'' N, 
070[deg]34'42'' W; then running southeast to position 41[deg]56'40.5'' 
N, 070[deg]41'4.5'' W; then running southwest to position 
41[deg]56'32'' N, 070[deg]34'14'' W; then running northwest to position 
41[deg]56'55.5'' N, 070[deg]34'52'' W; then running northeast back to 
position 41[deg]57'5'' N, 070[deg]34'42'' W.
    (b) Regulations. (1) In accordance with the general regulations in 
[sect][sect] 165.23 and 165.33 of this part, entry into or movement 
within these zones is prohibited unless authorized by the Captain of 
the Port Boston.
    (2) All vessel operators shall comply with the instructions of the 
COTP or the designated on-scene U.S. Coast Guard patrol personnel. On-
scene Coast Guard patrol personnel include commissioned, warrant, and 
petty officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, local, state, and federal law enforcement vessels.
    (3) No person may enter the waters or land area within the 
boundaries of the safety and security zones unless previously 
authorized by the Captain of the Port, Boston or his authorized patrol 
representative.

    Dated: May 16, 2002.
B.M. Salerno,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 02-13550 Filed 5-29-02; 8:45 am]
BILLING CODE 4910-15-P