02-20755. Security Zones; Captain of the Port Chicago Zone, Lake Michigan

AGENCY:

Coast Guard, DOT.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing permanent security zones on the navigable waters of the Des Plaines River, the Kankakee River, the Rock River, and Lake Michigan in the Captain of the Port Zone Chicago. 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 portions of the Des Plaines River, the Kankakee River, the Rock River, and Lake Michigan.

DATES:

This rule is effective on August 16, 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 CGD09-02-001 and are available for inspection or copying at Coast Guard Marine Safety Office Chicago, between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

MST3 Kathryn Varela, U.S. Coast Guard Marine Safety Office Chicago, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On May 22, 2002, we published a notice of proposed rulemaking (NPRM) entitled Security Zones; Captain of the Port Chicago Zone, Lake Michigan, in the Federal Register (67 FR 35939). We received six 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. In response to the terrorist attacks on September 11, 2001, the Coast Guard implemented temporary security zones around critical facilities throughout the U.S. Some of those facilities included nuclear power plants, water intake cribs, and Navy Pier. Security zones around these facilities helps protect against the subversive type of activity that resulted in the World Trade Center and Pentagon attacks. Since the temporary security zone will expire on August 1, 2002, in order to continue ensuring security at these nuclear power plants, water intake cribs, and Navy Pier, this final rule must be implemented prior to the August 1, 2002 expiration. As such, it is necessary to make this rule effective less than 30 days after publication.

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, and significant damage to the Pentagon. National security and intelligence officials warn that future terrorist attacks are likely. To protect from such, this regulation will establish permanent security zones on the navigable waters of the Des Plaines River, the Kankakee River, the Rock River, and Lake Michigan.

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 Chicago, or his authorized representative, are prohibited from entering or moving within the zones. The Captain of the Port Chicago may be contacted via VHF Channel 16 for further instructions before transiting through the restricted area. The Captain of the Port Chicago'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, 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, the Coast Guard received 6 comments on the proposed rulemaking. Three comments were concerned that the Donald C. Cook Nuclear Power Plants security zone would exclude fishermen from a good fishing area. Nuclear power plants are critical infrastructures 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 Chicago 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 Chicago.

One comment stated concern that the security zones around Navy Pier and the Jardine Water Filtration Plant did not include the northside of the plant. Commenter concerned for the Commonwealth Edison vault that supplies electrical power to the Jardine Water Filtration Plant being directly above the waters edge. The Captain of the Port Chicago has taken under advisement and after review has determined that the present security zone boundaries are adequate for the current threat condition.

One comment received from the Palisades Nuclear Power Plant requesting changes to the security zone coordinates to match their northern and southern shoreline boundaries. The commenter noted that the current security zone for the Palisades Nuclear Power Plant did not match where their security barriers are placed, and for enforcement purposes recommended the change. The Coast Guard concurs with this comment and has identified the new northern and southern coordinates as 42°19′31″ N, 086°18′50″ W (northern shoreline), 42°19′07″ N, 086°19′05″ W (southern shoreline).

One comment recommended that the Navy Pier Southside Security zone be changed to only 150 feet from the Southern side to allow recreational boaters a place to turn around, helping to alleviate congestion southeast of Navy Pier due to heavy vessel traffic waiting for the Chicago Lock. The Captain of the Port Chicago has determined that the present risk levels justify total elimination of the Navy Pier Southside security zone.

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 proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this final 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 final rule would 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. This rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this final rule so that they can 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 final rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

We have analyzed this final rule under Executive Order 13132, Federalism, and have determined that this rule does 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 final rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This final rule would not affect 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 final 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 final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

Indian Tribal Governments

This final 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 final 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.

Environment

We have considered the environmental impact of this final rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, 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 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.

2. Add § 165.908 to read as follows:

§ 165.908

Security Zones; Captain of the Port Chicago, Zone, Lake Michigan.

(a) Security zones. The following areas, defined by coordinates based upon North American Datum 1983, are security zones:

(1) Navy Pier Northside. (i) Location. All waters between the Navy Pier and the Jardine Water Filtration Plant shoreward of a line drawn from the southeast corner of the Jardine Water Filtration Plant at 41°53′36″ N, 87°36′10″ W, to the northeast corner of the Navy Pier at 41°53′32″ N, 87°35′55″ W; then following the Navy Pier, seawall, and Jardine Water Filtration Plant back to the beginning.

(ii) Regulations. The Captain of the Port Chicago will normally permit those U.S. Coast Guard certificated passenger vessels that normally load and unload passengers at Navy Pier to operate in the zone. However, should the Captain of the Port Chicago determine it is appropriate, he will require even those U.S. Coast Guard certificated passenger vessels which normally load and unload passengers at Navy Pier to request permission before leaving or entering the security zones. The Captain of the Port Chicago will notify these vessels via Broadcast Notice to Mariners if they must notify the Coast Guard before entering or transiting the security zone. As such, vessels that regularly operate within this zone are responsible for monitoring Broadcasts Notice to Mariners for the Chicago area. These broadcasts will be made by U.S. Coast Guard Group Milwaukee.

(2) Dresden Nuclear Power Plant. All waters of the Illinois River in the vicinity of Dresden Nuclear Power Plant encompassed by a line starting on the shoreline at 41°23′45″ N, 88°16′18″ W; then east to the shoreline at 41°23′39″ N, 88°16′09″ W; then following along the shoreline back to the beginning.

(3) Donald C. Cook Nuclear Power Plant. All waters of Lake Michigan around the Donald C. Cook Nuclear Power Plant encompassed by a line starting on the shoreline at 41°58.656′ N, 86°33.972′ W; then northwest to 41°58.769′ N, 86°34.525′ W; then southwest to 41°58.589′ N, 86°34.591′ W; then southeast to the shoreline at 41°58.476′ N, 86°34.038′ W; and following along the shoreline back to the beginning.

(4) Palisades Nuclear Power Plant. All waters of Lake Michigan around the Palisades Nuclear Power Plant within a line starting on the shoreline at 42°19′07″ N, 86°19′05″ W; then northwest to 42°19′22″ N, 86°19′54″ W; then north to 42°19′44″ N, 86°19′43″ W; then southeast back to the shoreline at 42°19′31″ N, 86°18′50″ W; then following along the shoreline back to the beginning.

(5) Byron Nuclear Power Plant. All waters of the Rock River encompassed by the arc of a circle with a 100-yard radius with its center in approximate position 42°05′01″ N, 89°19′27″ W.

(6) Zion Nuclear Power Plant. All waters of Lake Michigan encompassed by a line starting on the shoreline at 42°26′36″ N, 87°48′03″ W; then southeast to 42°26′20″ N, 87°47′35″ W; then northeast to 42°26′53″ N, 87°47′22″ W; then northwest to the shoreline at 42°27′06″ N, 87°48′00″ W; then following along the shoreline back to the beginning.

(7) 68th Street Water Intake Crib. All waters of Lake Michigan within the arc of a circle with a 100-yard radius of the 68th Street Crib with its center in approximate position 41°47′10″ N, 87°31′51″ W.

(8) Dever Water Intake Crib. All waters of Lake Michigan within the arc of a circle with a 100-yard radius of the Dever Crib with its center in approximate position 41°54′55″ N, 87°33′20″ W.

(9) 79th Street Water Intake Crib. All waters of Lake Michigan within the arc of a circle with a 100-yard radius of the 79th Street Water Filtration Plant with its center in the approximate position 41°45′30″ N, 87°32′32″ W.

(b) Regulations. (1) Under § 165.33, entry into these zones is prohibited unless authorized by the Coast Guard Captain of the Port Chicago. Section 165.33 also contains other general requirements.

(2) All persons and vessels shall comply with the instruction of the Captain of the Port Chicago or the designated on-scene U.S. Coast Guard patrol personnel. On-scene patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard on board Coast Guard, Coast Guard Auxiliary, local, state, and federal law enforcement vessels. Emergency response vessels are authorized to move within the zone but must abide by the restrictions imposed by the Captain of the Port.

(3) Persons who would like to transit through a security zone in this section must contact the Captain of the Port at telephone number [phone] or on VHF channel 16 (121.5 MHz) 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 29, 2002.

R.E. Seebald,

Captain, Coast Guard, Captain of the Port, Chicago.