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E-M:/ Fermi and Davis Besse Lake Erie Security Zones



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[Federal Register: July 15, 2002 (Volume 67, Number 135)]
[Rules and Regulations]
[Page 46385-46387]
 >From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy02-6]

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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]
BILLING CODE 4910-15-P


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