[Federal Register Volume 68, Number 70 (Friday, April 11, 2003)]
[Rules and Regulations]
[Pages 17736-17738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8945]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 03-014]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing 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. This 
security zone will not affect recreational activities within the surf 
zone or the beach.

DATES: This rule is effective from 12:01 a.m. (PST) on March 21, 2003 
to 11:59 p.m. (PDT) on May 21, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket COTP San Diego 03-014, 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: Lieutenant Commander Rick Sorrell, 
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 was set to expire 
at 3:59 p.m. PDT on June 21, 2002. It has since been extended and is 
now set to expire at 11:59 p.m. PDT March 21, 2003.
    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 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.
    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 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.

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

[[Page 17737]]

radius of San Onofre Nuclear Generating Station that is centered at the 
following coordinate: 33[deg] 22' 30'' N, 117[deg] 33' 50'' W. This 
security zone will not affect recreational activities within the surf 
zone or the beach.
    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. 33 U.S.C. 1226. The terrorist acts against the United 
States on September 11, 2001, have increased the need for safety and 
security measures on U.S. ports and waterways. In response to these 
terrorist acts, and in order to prevent similar occurrences, the Coast 
Guard is establishing a temporary security zone in the navigable waters 
of the United States 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.
    This temporary security zone, prohibiting all vessel traffic from 
entering, transiting or anchoring within the above-described area, is 
necessary for the security and protection of the San Onofre Nuclear 
Generating Station. This zone will be enforced by Coast Guard patrol 
craft or any patrol craft and resources enlisted by the COTP.
    Persons and vessels are prohibited from entering into this security 
zone unless authorized by the Captain of the Port or his designated 
representative. Each person and vessel in a security zone shall obey 
any direction or order of the COTP. The COTP may remove any person, 
vessel, article, or thing from a security zone. No person may board, or 
take or place any article or thing on board, any vessel in a security 
zone without the permission of the COTP.
    Any violation of the security zone described herein is punishable 
by, among other things, criminal penalties (imprisonment for not more 
than 12 years and a fine of not more than $250,000), in rem liability 
against the offending vessel, and license sanctions.

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 Homeland 
Security (DHS).
    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 DHS 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 Lieutenant Commander Rick 
Sorrell, 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 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,

[[Page 17738]]

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 M16475.1D, this rule 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.

0
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

0
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; Department of Homeland Security 
Delegation No. 0170.

0
2. Revise Sec.  165.T11-048 to read as follows:


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

    (a) Location. This security zone will encompass the waters within a 
one nautical mile seaward arc off San Onofre Nuclear Generating Station 
that is centered at the following coordinate: latitude 33[deg]22.186' 
N, longitude 117[deg]33.607' W. This security zone will not affect 
recreational activities within the surf zone or the beach.
    (b) Effective Dates. This security zone will be in effect from 
12:01 a.m. (PST) on March 21, 2003 to 11:59 p.m. (PDT) on May 21, 2003.
    (c) Waivers. The COTP may waive any of the requirements of this 
rule for any person, vessel or class of vessel upon finding that 
circumstances are such that application of the security zone is 
unnecessary for national or port security.
    (1) The following categories of persons are automatically exempt 
from requirement to depart the security zone but must comply with the 
provisions set forth below to operate in the security zone:
    (i) Recreational surfers;
    (ii) Hikers on the beach;
    (iii) Swimmers.
    (2) Reports to the COTP and requests for waivers required by this 
section must be made by telephone or radio call to the following 
numbers or on the following channels: Marine Safety Office San Diego at 
(619) 683-6495 or VHF-FM channel 16.
    (3) COTP reserves the authority to revoke any waivers granted in 
order to provide for the safety and security of boaters, the San Onofre 
Nuclear Generating Station or its personnel.
    (d) Authority. In addition to 33 U.S.C. 1231, the authority for 
this section includes 33 U.S.C. 1226.

    Dated: March 21, 2003.
Stephen P. Metruck,
Commander, Coast Guard, Captain of the Port, San Diego.
[FR Doc. 03-8945 Filed 4-10-03; 8:45 am]
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