[Federal Register Volume 74, Number 190 (Friday, October 2, 2009)]
[Rules and Regulations]
[Pages 50922-50925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23754]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0311]
RIN 1625-AA00


Direct Final Rule; Safety and Security Zones: Pilgrim Nuclear 
Power Plant, Plymouth, MA

AGENCY: Coast Guard, DHS.

ACTION: Direct final rule; request for comments.

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SUMMARY: By this direct final rule, the Coast Guard is amending 
existing regulations with a set of coordinates which will better 
reflect the safety and security zone around the Pilgrim Nuclear Power 
Plant. This action will prohibit entry into, or movement within, the 
safety and security zones located in Cape Cod Bay and adjacent shore 
areas. This action is necessary to ensure public safety and prevent 
sabotage or terrorist acts. 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.

DATES: This rule is effective December 31, 2009, unless an adverse 
comment, or notice of intent to submit an adverse comment, is either 
submitted to our online docket via http://www.regulations.gov on or 
before December 1, 2009 or reaches the Docket Management Facility by 
that date. If an adverse comment, or notice of intent to submit an 
adverse comment, is received by December 1, 2009, we will withdraw this 
direct final rule and publish a timely notice of withdrawal in the 
Federal Register.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0311 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, e-
mail or call Chief Eldridge McFadden, U.S. Coast Guard, Sector Boston, 
Waterways Management Division; telephone 617-223-5160, e-mail 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Regulatory Information
IV. Background
V. Discussion of the Rule
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0311), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2009-0311'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column.If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2009-0311'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the internet, you may also view the docket 
online by visiting the Docket Management Facility in Room W12-140

[[Page 50923]]

on the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

II. Abbreviations

DHS Department of Homeland Security;
FR Federal Register;
Sec.  Section symbol;
U.S.C. United States Code.

III. Regulatory Information

    We are publishing this direct final rule under 33 CFR 1.05-55 
because we do not expect an adverse comment. If no adverse comment or 
notice of intent to submit an adverse comment is received by December 
31, 2009, this rule will become effective as stated in the DATES 
section. In that case, approximately 30 days before the effective date, 
we will publish a document in the Federal Register stating that no 
adverse comment was received and confirming that this rule will become 
effective as scheduled. However, if we receive an adverse comment or 
notice of intent to submit an adverse comment, we will publish a 
document in the Federal Register announcing the withdrawal of all or 
part of this direct final rule. If an adverse comment applies only to 
part of this rule (e.g., to an amendment, a paragraph, or a section) 
and it is possible to remove that part without defeating the purpose of 
this rule, we may adopt, as final, those parts of this rule on which no 
adverse comment was received. We will withdraw the part of this rule 
that was the subject of an adverse comment. If we decide to proceed 
with a rulemaking following receipt of an adverse comment, we will 
publish a separate notice of proposed rulemaking (NPRM) and provide a 
new opportunity for comment.
    A comment is considered ``adverse'' if the comment explains why 
this rule or a part of this rule would be inappropriate, including a 
challenge to its underlying premise or approach, or would be 
ineffective or unacceptable without a change.

IV. Background

    Safety and security zones were established to safeguard the Pilgrim 
Nuclear Power Plant in light of terrorist attacks on New York City and 
Washington, DC on September 11, 2001. The zones were implemented to 
protect persons at the facility, the public, and surrounding 
communities from sabotage or other subversive acts, accidents, or other 
similar events. The Pilgrim Nuclear Power Plant is a possible target of 
terrorist attack due to the potential catastrophic impact an attack 
would have on such a plant. Established safety and security zones 
prohibit entry into or movement within the specified areas. The 
rulemaking regarding this site, published in the Federal Register [67 
FR 37689], established 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]57'5'' N, 070[deg]34'42'' W; then running southeast to position 
41[deg]56'40.5'' N, 070[deg]34'4.5'' W; then running southwest to 
position 41[deg]56'55.5'' N, 070[deg]34'52'' W; then returning to its 
point of origin. These positions were incorrect (one of the positions 
is in fact 6 miles inland). This regulation aims to correct the 
previous regulation.
    Buoy markers, which serve as a visual reminder of the safety and 
security zone surrounding the Nuclear Power Plant, have already been 
placed at the intended coordinates surrounding the plant. This 
regulation will amend the existing coordinates, to reflect the 
originally intended parameters.
    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. All persons and vessels in a safety and security zone must 
obey all directions and orders made by the Captain of the Port, or any 
other designated on-scene Coast Guard representative. 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. Violations of safety or security 
zone described herein, are 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.

V. Discussion of the Rule

    The current safety and security zone regulation is erroneous as it 
cites incorrect coordinates. This regulation will correct the existing 
one by adding coordinates which reflect the actual safety and security 
zones delineated by the buoys already put in place by the Pilgrim Power 
Plant. The new regulation will change the safety and security zone 
from:
    41[deg]57'5'' N, 070[deg]34'42'' W; then running southeast to 
position 41[deg]56'40.5'' N, 070[deg]34'4.5'' W; then running southwest 
to position 41[deg]56'55.5'' N, 070[deg]34'52'' W; then returning to 
its point of origin to:
    41[deg]56'59.3'' N, 070[deg]34'58.5'' W; thence to 41[deg]57'12.2'' 
N, 070[deg]34'41.9'' W; thence to 41[deg]56'42.3'' N, 070[deg]34'00.1'' 
W; thence to 41[deg]56'29.5'' N, 070[deg]34'14.5'' W.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    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. This rule is not a significant regulatory 
action because it seeks only to update the previous regulation with the 
correct and intended coordinates. These coordinates have already been 
marked by buoys, and mariners in the surrounding area already know to 
avoid this zone.

[[Page 50924]]

B. 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.
    This rule would affect the following entities, some of which might 
be small entities: Fishermen, and the owners or operators of vessels 
intending to transit, fish or anchor in a portion of Cape Cod Bay, 
Massachusetts. However, as stated above, because mariners have already 
been maintaining a certain distance from the plant, with the assistance 
of buoys as visual markers, little to no effect will be realized once 
the new regulation is implemented.
    Therefore, 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. Comments submitted in response to this 
finding will be evaluated under the criteria in the ``Regulatory 
Information'' section of this preamble.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule will 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please consult Chief Eldridge McFadden, U.S. Coast Guard, 
Sector Boston, Waterways Management Division; telephone 617-223-5160, 
e-mail [email protected]. The Coast Guard will not retaliate 
against small entities that question or complain about this rule or any 
policy or action of the Coast Guard.
    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).

D. 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).

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if the rule 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.

F. 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.

G. 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.

H. 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.

I. 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.

J. 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.

K. 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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(g) of the Instruction.
    This rule involves the correction of safety and security zones 
which were implemented in a previous regulation. An environmental 
analysis checklist and a categorical exclusion determination are 
available in the

[[Page 50925]]

docket where indicated under the ``Public Participation and Request for 
Comments'' section of this preamble.

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. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Revise Sec.  165.115(a) to read as follows:


Sec.  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]56'59.3'' N, 
070[deg]34'58.5'' W; thence to 1[deg]57'12.2'' N, 070[deg]34'41.9'' W; 
thence to 41[deg]56'42.3'' N, 070[deg]34'00.1'' W; thence to 
41[deg]56'29.5'' N, 070[deg]34'14.5'' W.
* * * * *

    Dated: July 29, 2009.
Nathan E. Knapp,
Commander, U.S. Coast Guard, Captain of the Port Boston, Acting.
[FR Doc. E9-23754 Filed 10-1-09; 8:45 am]
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