[Federal Register Volume 67, Number 119 (Thursday, June 20, 2002)]
[Rules and Regulations]
[Pages 41838-41840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15604]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 02-015]
RIN 2115-AA97


Security Zone; Waters Adjacent to San Onofre, San Diego County, 
CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; change in effective period.

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SUMMARY: The Coast Guard is revising the effective period for a 
temporary security zone in the waters adjacent to the San Onofre 
Nuclear Generating Station in San Diego County, 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: The amendment to Sec. 165.T11-048(b) in this rule is effective 
June 20, 2002. Section 165.T11-048, added at 67 FR 5482, February 6, 
2002, effective from 6 p.m. October 25, 2001 to 3:59 p.m. June 21, 
2002, as amended in this rule, is extended in effect through 11:59 p.m. 
March 21, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket COTP San Diego 02-015, 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: Chief Petty Officer Raymond Taylor, 
Marine Safety Office San Diego, at (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 6, 2002, we published a temporary final rule for waters 
adjacent to the San Onofre Nuclear Generating Station entitled 
``Security Zone; Waters adjacent to San Onofre, San Diego County, 
California'' in the Federal Register (67 FR 5480) under Sec. 165.T11-
048. It has been in effect since October 25, 2001 and is set to expire 
3:59 p.m. PDT on June 21, 2002.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a 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 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 original TFR was urgently 
required to prevent possible terrorist strikes against the United 
States and more specifically the people, waterways, and properties near 
the San Onofre Nuclear Generating Station. It was anticipated that we 
would assess the security environment at the end of the effective 
period to determine whether continuing security precautions were 
required and, if so, propose regulations responsive to existing 
conditions. We have determined the need for continued security 
regulations exists.
    The Coast Guard plans to utilize the extended effective period of 
this TFR to engage in notice and comment rulemaking to develop 
permanent regulations tailored to the present and foreseeable security 
environment with the Captain of the Port (COTP) San Diego. Therefore, 
the public will still have the opportunity to comment on this rule. The 
measures contemplated by the rule were intended to facilitate ongoing 
response efforts and prevent future terrorist attack. In this case, 
doing a NPRM will be repetitious in nature and since delay is inherent 
in the NPRM process, 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 this rule are intended to prevent 
future terrorist attacks against individuals and facilities within or 
adjacent to San Onofre Nuclear Generating Station. Immediate action is 
required to accomplish these objectives and necessary to continue 
safeguarding these vessels and the surrounding area. Any delay in the 
effective date of this rule is impractical and contrary to the public 
interest.
    The Coast Guard plans to publish a NPRM to establish permanent 
security zones that are temporarily effective under this rule. This 
revision preserves the status quo within the Port while permanent rules 
are developed.
    For the reasons stated in the paragraphs above under 5 U.S.C. 
553(d)(3), the Coast Guard also finds that good cause exists for making 
this rule effective less than 30 days after publication in the Federal 
Register.

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.
    In response to these terrorist acts, and in order to prevent 
similar occurrences, the Coast Guard has established a temporary 
security zone in the navigable waters of the United States

[[Page 41839]]

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 
properties within the San Onofre Nuclear Generating Station area.
    As of today, the need for this security zone still exists. The 
effective period of this temporary final rule will extend through 11:59 
p.m. PST March 21, 2003. During this time, the Coast Guard plans to 
publish a notice of proposed rulemaking (NPRM) in the Federal Register, 
which will include a public comment period, and for a final rule to be 
put into effect without there being an interruption in the protection 
provided by this security zone.

Discussion of Rule

    This regulation extends the current security zone that prohibits 
all vessel traffic from entering, transiting or anchoring within a one 
nautical mile radius of San Onofre Nuclear Generating Station that is 
centered at the following coordinate: 33 deg. 22' 30" N, 117 deg. 33' 
50" W.
    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. This authority, under section 7 of the PWSA (33 U.S.C. 
1226), supplements the Coast Guard's authority to issue security zones 
under The Magnuson Act regulations promulgated by the President under 
50 U.S.C. 191, including Subparts 6.01 and 6.04 of Part 6 of Title 33 
of the Code of Federal Regulations.
    Vessels or persons violating this section will be subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. 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 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. Vessels or persons violating this section 
are also subject to the penalties set forth in 50 U.S.C. 192: seizure 
and forfeiture of the vessel to the United States, a maximum criminal 
fine of $10,000, and imprisonment up to 10 years.
    The Captain of the Port will enforce these zones and may enlist the 
aid and cooperation of any Federal, State, county, municipal, and 
private agency to assist in the enforcement of the regulation. This 
regulation is proposed under the authority of 33 U.S.C. 1226 in 
addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 
1231.

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 section 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 Chief Petty Officer Raymond 
Taylor, 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.

[[Page 41840]]

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 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 because 
we are establishing a security zone. 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. Revise Sec. 165.T11-048(b) to read as follows:


Sec. 165.T11-048  Security Zone; Waters adjacent to San Onofre, San 
Diego County, California

* * * * *
    (b) Effective dates. These security zones are in effect from 6 p.m. 
(PDT) on October 25, 2001 to 11:59 p.m. (PST) March 21, 2003.
* * * * *

    Dated: June 12, 2002.
S.P. Metruck,
Commander, Coast Guard, Captain of the Port, San Diego, California.
[FR Doc. 02-15604 Filed 6-19-02; 8:45 am]
BILLING CODE 4910-15-P