02-7713. Security Zone; Waters Adjacent to Diablo Canyon Nuclear Power Plant, Avila Beach, CA

AGENCY:

Coast Guard, DOT.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Coast Guard has established a security zone in the waters adjacent to Diablo Canyon Nuclear Power Plant near Avila Beach, California. This action is necessary to ensure public safety and prevent sabotage or terrorist acts against the power plant and individuals near or in the power plant facilities and the surrounding communities. Entry into this zone will be prohibited unless specifically authorized by the Captain of the Port Los Angeles-Long Beach.

DATES:

This interim rule is effective at 3:59 p.m. (PDT) on March 29, 2002. Comments and related material must reach the Coast Guard on or before May 28, 2002.

ADDRESSES:

You may mail comments and related material to U.S. Coast Guard Marine Safety Office/Group Los Angeles-Long Beach, Waterways Management Division, 1001 S. Seaside Avenue, Building 20, San Pedro, California, 90731. The Waterways Management Division maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Waterways Management Division between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call Lieutenant Junior Grade Rob Griffiths, Assistant Chief, Waterways Management Division, [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP Los Angeles-Long Beach 02-006), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them. In our final rule, we will include a concise general statement of the comments received and identify any changes from the rule based on the comments.

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Division at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register.

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this rulemaking. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an 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 around Diablo Canyon Nuclear Power Plant. This security zone is needed to protect the United States and more specifically the people, waterways, and properties near Diablo Canyon. A Temporary Final Rule (TFR) has been in effect protecting this area since 4:00 p.m. (PDT) on September 28, 2001 and will be expiring 3:59 p.m. (PDT) on March 29, 2002. In order for the enforcement of the security zone to continue without interruption, an interim rule with request for comments will be used instead of the notice of proposed rulemaking procedure. The delay inherent in the NPRM process, and any delay in the effective date of this rule, is contrary to the public interest insofar as it may render individuals and facilities within and adjacent to Diablo Canyon Nuclear Power Plant vulnerable to subversive activity, sabotage or terrorist attack. The measures contemplated by the rule are intended to prevent future terrorist attacks against individuals and facilities within or adjacent to Diablo Canyon Nuclear Power Plant. Immediate action is required to accomplish these objectives and necessary to continue safeguarding the Diablo Canyon Nuclear Power Plant and its surrounding areas.

For the reasons stated in the paragraph above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register.

Background and Purpose

On September 11, 2001, terrorists launched attacks on commercial and public structures—the World Trade Center in New York and the Pentagon in Arlington, Virginia—killing large numbers of people and damaging properties of national significance. There is an increased risk that further subversive or terrorist activity may be launched against the United States based on warnings given by national security and intelligence officials. The Federal Bureau of Investigation (FBI) has issued warnings on October 11, 2001 and February 11, 2002 concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan have made it prudent for important U.S. facilities to be on a higher state of alert because Osama Bin Ladin and his Al Qaeda organization, and other similar organizations, have publicly declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on a nuclear power plant would have on the surrounding area and communities, security zones are prudent for navigable waterways adjacent to these nuclear power plants. To mitigate the risk of terrorist actions against important U.S. infrastructure, the Coast Guard has increased safety and security measures on the waterfronts of nuclear power plants by establishing security zones to aid in the waterside protection of these facilities. Vessels operating near the Diablo Canyon Nuclear Power Plant present possible platforms from which individuals may gain unauthorized access to the power plant facilities or launch terrorist attacks upon the waterfront structures and adjacent population centers. As a result, the Coast Guard is taking measures to prevent vessels or persons from accessing the navigable waters close to the Diablo Canyon Nuclear Power Plant.

This regulation establishes a security zone in the waters of the Pacific Ocean within a 2,000 yard (approximately one nautical mile) radius of Diablo Canyon Nuclear Power Plant centered at position 35°12′23″ N, 120°51′23″ W. These coordinates are based upon the North American Datum of 1983 (NAD 83). Diablo Canyon Nuclear Power Plant is located adjacent to the Pacific Ocean along California's Central Coast near Avila Beach in San Luis Obispo County. Extensive land-based security measures are already in place to protect Diablo Canyon Nuclear Power Plant from sabotage. Establishing a security zone in the waters adjacent to the power plant will aid in the waterside protection of the facility.

This rulemaking will make permanent the temporary security zone established on October 2, 2001, which was published in the Federal Register (66 FR 53713, Oct. 24, 2001) under temporary section 165.T11-055(a)(3) of Title 33 of the Code of Federal Regulations (CFR). In that rulemaking, the Coast Guard established a security zone encompassing the waters within a one nautical mile radius of Diablo Canyon Nuclear Power Plant, which is essentially the same security zone that we are now establishing permanently.

Discussion of Interim Rule

The Coast Guard has established a security zone on the waters within a 2,000 yard radius of Diablo Canyon Nuclear Power Plant centered at position 35°12′23″ N, 120°51′23″ W. [Datum: NAD 83]. This security zone is needed for national security reasons to protect the power plant, the public, transiting vessels, and adjacent waterside facilities from potential subversive acts, accidents, or other events of a similar nature. Entry into this zone will be prohibited unless specifically authorized by the Captain of the Port.

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. In addition to the authority of section 12 of the PWSA (33 U.S.C. 1231), the authority for this rule includes section 7 of the PWSA (33 U.S.C. 1226).

Vessels or persons violating this section will be subject to the penalties set forth in section 13 of the PWSA (33 U.S.C. 1232). Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. The Captain of the Port will enforce this zone and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the patrol and enforcement of this security zone.

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. It has not been reviewed by the Office of Management and Budget 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).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. The size of the zone encompasses a small portion of the Pacific Ocean located along a jagged and rocky coastline. Due to the naturally hazardous nature of the coastline, we expect most vessels to remain well clear and transit around this zone for safety of navigation reasons. In addition, vessels may be allowed to enter this zone on a case-by-case basis with permission of the Captain of the Port.

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 does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we have reviewed it for potential economic impact on small entities.

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. We expect this rule will affect the following entities, some of which may be small entities: the owners and operators of private and commercial vessels intending to transit or anchor in the Pacific Ocean near Avila Beach, California. The impact to these entities would not, however, be significant since this zone encompasses a small portion of the ocean located along a jagged and rocky portion of the coastline. In addition, vessels may be allowed to enter this zone on a case-by-case basis with permission of the Captain of the Port.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Junior Grade Rob Griffiths, Assistant Chief, Waterways Management Division, [phone].

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, the effects of this rule are discussed 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 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 it establishes a security zone. A “Categorical Exclusion Determination” is available in the docket 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, 160.5; 49 CFR 1.46.

2. Add § 165.1155 to read as follows:

§ 165.1155

Security Zone; Diablo Canyon Nuclear Power Plant, Avila Beach, California.

(a) Location. The following area is a security zone:

All waters of the Pacific Ocean, from surface to bottom, within a 2,000 yard radius of Diablo Canyon Nuclear Power Plant centered at position 35°12′23″ N, 120°51′23″ W. [Datum: NAD 83].

(b) Regulations.

(1) In accordance with the general regulations in § 165.33 of this part, entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port, Los Angeles-Long Beach, or his or her designated representative.

(2) Persons desiring to transit the area of the security zone may contact the Captain of the Port at telephone number 1-800-221-8724 or on VHF-FM channel 16 (156.8 MHz). If permission is granted, all persons and vessels must 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, the authority for this section includes 33 U.S.C. 1226.

Dated: March 22, 2002.

J.M. Holmes,

Captain, U.S. Coast Guard, Captain of the Port, Los Angeles-Long Beach.