[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Rules and Regulations]
[Pages 49576-49578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19354]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD09-02-007]
RIN 2115-AA97


Security Zones; Captain of the Port Milwaukee Zone, Lake Michigan

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 Michigan in the Captain of the Port 
Milwaukee Zone. These security zones are necessary to protect the 
nuclear power plants and water intake cribs from possible sabotage or 
other subversive acts, accidents, or possible acts of terrorism. These 
zones are intended to restrict vessel traffic from a portion of Lake 
Michigan.

DATES: This rule is effective July 31, 2002.

ADDRESSES: You may mail comments and related material to U.S. Coast 
Guard Marine Safety Office Milwaukee, 2420 South Lincoln Memorial 
Drive, Milwaukee, WI 53207.
    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 CGD09-02-007 and are available for inspection or 
copying at Marine Safety Office Milwaukee, between 7 a.m. and 3:30 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Marine Science Technician Chief David 
McClintock, U.S. Coast Guard Marine Safety Office Milwaukee, at (414) 
747-7155.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On April 18, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; Captain of the Port Milwaukee Zone, 
Lake Michigan'' in the Federal Register (67 FR 19142). We received 14 
letters and 2 petitions 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 this 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.

Background and Purpose

    On September 11, 2001, the United States was the target of 
coordinated attacks by international terrorists resulting in 
catastrophic loss of life, 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 regulation establishes two permanent security zones for the 
following facilities:
    (1) Point Beach nuclear power plant, and
    (2) Kewaunee nuclear power plant.
    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 Milwaukee, or his authorized representative, are prohibited 
from entering or moving within the zones. The Captain of the Port 
Milwaukee may be contacted via VHF Channel 16 for further instructions 
before transiting through the restricted area. The Captain of the Port 
Milwaukee'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 these security zones, their exact 
locations, and the restrictions involved via Local Notice to Mariners 
and the Broadcast Notice to Mariners.

Discussion of Comments and Changes

    During the public comment period, we received 14 letters. All 
expressed concern that the security zone would exclude fishermen from a 
good fishing area and that the security zone would do little to prevent 
acts of terrorism.
    One letter was a form comment signed by 129 individuals stating 
that a no-fishing, no-boating zone, marked by buoys, will help to deter 
a terrorist attack. However, the ban will prevent fishermen from 
enjoying good fishing in that area. Another letter was a form comment 
signed by 145 individuals stating that the current level of security

[[Page 49577]]

is sufficient and that they would like to see the area open to 
fishermen.
    The Captain of the Port Milwaukee has carefully weighed security 
concerns versus public access in the decision to establish security 
zones. The security zones create a clear area in which unauthorized 
persons are readily detectable. This area, coupled with regular 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.
    Thirteen comments indicated that recreational boaters are being 
deprived of good fishing areas and a beach area for families and 
tourists to enjoy. Due to the events of September 11, 2001, both 
nuclear power plants have already taken steps that prohibit access to 
beach and park areas. These steps include prohibiting beach and park 
access, posting signs, and regular roaming patrols. Nuclear plants are 
critical infrastructure throughout the country, providing electricity 
to millions of homes and cities. In addition, the plants pose a 
significant radiological hazard should their structural integrity be 
compromised. The Captain of the Port Milwaukee has determined that the 
best practice to ensure the safety of these facilities is to provide a 
clear area in which no vessels or persons are allowed access without 
specific permission from the Captain of the Port Milwaukee.
    One comment was from a local charter boat captain who was concerned 
about the impact the security zones would have on the local charter 
fleet. The Captain of the Port Milwaukee has taken every step possible 
to minimize the impact of the permanent security zones by decreasing 
the size from that of the temporary security zone. The permanent 
security zone sizes were carefully considered and balance the safety 
and security of the facility versus access to the area. The permanent 
zone size, while smaller than the temporary zone size, continues to 
provide a clear area in which to detect persons or vessels while 
providing for traditional use around the security zones.
    The Captain of the Port Milwaukee feels that this action is 
currently necessary until there is domestic security intelligence to 
indicate otherwise. As circumstances allow, the Captain of the Port 
Milwaukee may take steps to relieve the burden imposed on the public by 
allowing general access, reducing the zone size, or deactivating the 
security zones. However, this final rule remains unchanged from the 
proposed rule.

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).

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 is may be necessary, prior to transiting commercial 
vessels can request permission from the Captain of the Port Milwaukee 
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 
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, 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.

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

[[Page 49578]]

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.

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 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, and 160.5; 49 CFR 1.46.


Secs. 165.T09-109 and 165T09-110  [Removed]

    2. Remove Secs. 165.T09-109 and 165.T09-110.

    3. Add Sec. 165.916 to read as follows:


Sec. 165.916  Security Zones; Captain of the Port Milwaukee Zone, Lake 
Michigan.

    (a) Location. The following are security zones:
    (1) Kewaunee. All navigable waters of Western Lake Michigan 
encompassed by a line commencing from a point on the shoreline at 
44 deg. 20.647 N, 087 deg. 31.980 W, then easterly to 44 deg. 20.647 N, 
087 deg. 31.886 W, then southerly to 44 deg. 20.391 N, 087 deg. 31.866 
W, then westerly to 44 deg. 20.391 N, 087 deg. 32.067 W, then northerly 
following the shoreline back to the point of origin. All coordinates 
are based upon North American Datum 1983.
    (2) Point Beach. All navigable waters of Western Lake Michigan 
encompassed by a line commencing from a point on the shoreline at 
44 deg. 17.06 N, 087 deg. 32.15 W, then northeasterly to 44 deg. 17.12 
N, 087 deg. 31.59 W, then southeasterly to 44 deg. 16.48 N, 087 deg. 
31.42 W, then southwesterly to 44 deg. 16.42 N, 087 deg. 32.02 W, then 
northwesterly along the shoreline back to the point of origin. All 
coordinates are based upon North American Datum 1983.
    (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 Milwaukee. Section 165.33 also contains other general 
requirements.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number (414) 747-7155 or 
on VHF-FM Channel 16 to seek permission to transit the area. 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 19, 2002.
M.R. Devries,
Commander, U.S. Coast Guard, Captain of the Port Milwaukee.
[FR Doc. 02-19354 Filed 7-26-02; 4:02 pm]
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