[Federal Register Volume 67, Number 135 (Monday, July 15, 2002)]
[Rules and Regulations]
[Pages 46385-46387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17739]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 and the Davis Besse Nuclear Power Stations.

DATES: This rule is effective July 15, 2002.

ADDRESSES: 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 [CGD09-02-011] and are available for inspection or 
copying at U.S. Coast Guard Marine Safety Office Toledo, 420 Madison 
Ave, Suite 700, Toledo, Ohio 43604 between 8 a.m. and 4:30 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT Herb Oertli, Chief of Port 
Operations, Marine Safety Office Toledo, at (419) 418-6050.

SUPPLEMENTARY INFORMATION:   

Regulatory Information

    On May 8, 2002, we published a notice of proposed rulemaking (NPRM) 
entitled ``Security Zones; Captain of the Port Toledo Zone, Lake Erie'' 
in the Federal Register (67 FR 30846). We received 10 letters 
commenting on the proposed rule. No public hearing was requested, and 
none was held.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. The permanent security zones being 
established by the rulemaking are smaller in size than the temporary 
security zones currently in effect. By immediately implementing the 
smaller zone size, we will be relieving some of the burden placed on 
the public by a larger security zone. In addition, the temporary 
security zones currently in place may impact several private 
residences, the smaller permanent security zones ensure that these 
residences are not adversely impacted.

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.
    This rule establishes a permanent security zone off the waters of 
Enrico Fermi 2 Nuclear Power Station, Newport, Michigan. This security 
zone includes 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. These coordinates are based 
upon North American Datum 1983 (NAD 83).
    This rule also establishes a permanent security zone off the waters 
of Davis Besse Nuclear Power Station, Port Clinton, Ohio. This security 
zone includes waters and adjacent shoreline within a boundary 
commencing at 41 deg.36.1' N, 083 deg.04.7' 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 west following 
the shoreline back to the point of origin (NAD 83).
    These 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.

Discussion of Comment and Changes

    The Coast Guard received 10 comments on the proposed rulemaking. 
Eight comments support the establishment of security zones around the 
nuclear power stations. The only concern of those in favor of the 
establishment of security zones was that Coast Guard ensure the 
permanent security zones do not encompass the beachfront of any private 
residences. The two comments against establishing permanent security 
zones questioned the impact of having security zones.
    Three comments recommended changes to the security zone coordinates 
surrounding the Davis Besse Nuclear Power Station. The commenters noted 
that the Coast Guard's beginning coordinate for the security zone 
around the David Besse Power Station (41 deg.36.3' N, 083 deg.04.9' W) 
included several private residences. The comments requested the Coast 
Guard identify a new starting coordinate that excludes the private 
residences. After conducting an updated security risk assessment of the 
facility, the Coast Guard concurs with these comments and has 
identified the new starting coordinate as 41 deg.36.1' N, 083 deg.04.7' 
W (NAD 83).
    Two comments opposed the security zone around the Enrico Fermi 2 
Power Station, one questioning the impact of a security zone and the 
other stating that allowing fishermen in the area is a better way to 
protect the area. The security zones create a clear area in which 
unauthorized persons are readily detectable. This area, coupled with 
Coast Guard patrols, the assistance of state, local, and the nuclear 
power plant security personnel, all help to create an area to detect 
and respond to unauthorized individuals or vessels. Currently, the 
Captain of the Port Toledo believes that this method is the most 
effective way of deterring waterborne security threats to these nuclear 
facilities.

Regulatory Evaluation

    This final 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 rule to be so minimal that a full Regulatory

[[Page 46386]]

Evaluation under paragraph 10(e) of the regulatory policies and 
procedures of DOT was not conducted. The change to the starting 
coordinate discussed above does not change this assessment.

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.
    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.
    These security zones will not have a significant economic impact on 
a substantial number of small entities for the following reasons. Our 
rule will not obstruct the regular flow of commercial traffic and will 
allow vessel traffic to pass around the security zone. In addition, in 
the event that it may be necessary, prior to transiting commercial 
vessels can request permission from the Captain of the Port Toledo to 
transit through the zone.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. No 
comments or questions were received from any small businesses.
    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 
Executive Order 13132, Federalism, and have determined that this 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 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. We received several comments from property owners that wanted 
to ensure the security zones did not include any of their beachfront 
property. The western end of the security zone was adjusted slightly to 
ensure that the security zone did not encompass any private property.

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 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 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)(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 
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, and 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;

[[Page 46387]]

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.36.1' N, 
083 deg.04.7' 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.36.1' N, 
083 deg.04.7' 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: July 3, 2002.
D.L. Scott,
Commander, U.S. Coast Guard, Captain of the Port Toledo.
[FR Doc. 02-17739 Filed 7-12-02; 8:45 am]
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