02-13550. Safety and Security Zones; Pilgrim Nuclear Power Plant, Plymouth, MA

AGENCY:

Coast Guard, DOT.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing safety and security zones around the Pilgrim Nuclear Power Plant in Cape Cod Bay, Plymouth, MA. 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. The safety and security zones prohibit entry into or movement within a portion of Cape Cod Bay and adjacent shore areas and are needed to ensure public safety and prevent sabotage or terrorist acts.

DATES:

This rule is effective June 16, 2002.

ADDRESSES:

Documents as indicated in this preamble are available for inspection or copying at Marine Safety Office Boston, 455 Commercial Street, Boston, MA between the hours of 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Dave Sherry, Marine Safety Office Boston, Waterways Safety and Response Division, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory History

On January 29, 2002, we published a notice of proposed rulemaking (NPRM) for this regulation in the Federal Register (67 FR 4218). The comment period for that NPRM expired on April 15, 2002. The Coast Guard is now proceeding to implement a final rule taking into account all comments received.

Good cause exists for making this regulation effective in less than 30 days after publication in the Federal Register. Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest. Based upon comments received and evaluations of the proposed rulemaking and the hardships it threatened to impose on local waterway users, the zones have been reduced to less than one half of their original sizes in this final rule. As discussed below, the new zone descriptions will allow waterway users access to much more area than the previously proposed zones while still providing adequate protection to the Plant.

The public has been dealing with larger zones since September 2002, and has been anticipating the implementation of a final rule to coincide with the expiration on June 15, 2002 of current temporary safety and security zones around the Plant. Their comments indicate they want safety and security zones around the plant, but want smaller boundaries.

It is necessary for this zone to come into effect on June 16, 2002 to ensure there is no gap between its implementation and the expiration of the temporary safety and security zones published January 14, 2002 currently in effect around the Plant (67 FR 1607). If a gap between rulemakings occurs, the Coast Guard will have no viable enforcement options around the Plant waterfront during this period.

Because this final rule significantly decreases the impact on the public by implementing smaller zones, and because of the need to ensure there is no gap between the expiration of temporary safety and security zones published in January (67 FR 1607) that expire on June 15, 2002, and the implementation of this rulemaking, it is necessary for this regulation to become effective on June 16, 2002 in the interest of public safety and security. The public will still have substantial advance notice of this final rule before it becomes effective.

Background and Purpose

In light of terrorist attacks on New York City and Washington D.C. on September 11, 2001, safety and security zones are being established to safeguard the Pilgrim Nuclear Power Plant, persons at the facility, the public and surrounding communities from sabotage or other subversive acts, accidents, or other events of a similar nature. The Pilgrim Nuclear Power Plant presents a possible target of terrorist attack, due to the potential catastrophic impact nuclear radiation would have on the surrounding area, its large destructive potential if struck, and its proximity to a population center. These safety and security zones prohibit entry into or movement within the specified areas.

This rulemaking establishes 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°57′5″ N, 070°34′42″ W; then running southeast to position 41°56′42″ N, 070°41′6″ W; then running southwest to position 41°56′30″ N, 070°34′21″ W; then running northwest to position 41°56′51″ N, 070°34′55″ W; then running northeast back to position 41°57′5″ N, 070°34′42″ W.

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. Each person or vessel in a safety and security zone shall obey any direction or order of the Captain of the Port or designated Coast Guard representative on-scene. 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.

Any violation of any safety or security zone described herein, is 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.

Discussion of Comments and Changes Implemented in the Final Rule

The Coast Guard received 23 oral comments at one public meeting and 17 written comments during the comment period for the NPRM. All comments received were considered in the development of this final rule. Changes implemented in the final rule are the result of inter-Coast Guard evaluations of how to better employ and enforce the regulation and comments and recommendations of stakeholders in the COTP Boston zone. These stakeholders include the maritime industry, commercial and recreational fishermen, the maritime law community, and local townspeople.

As a result of the comments, review, and public recommendations the zones' delineation will change from the following: all waters of Cape Cod Bay and land adjacent to those waters enclosed by a line beginning at position 41°57′30″ N, 070°34′36″ W; then running southeast to position 41°56′36″ N, 070°33′30″ W; then running southwest to position 41°56′28″ N, 070°34′38″ W; then running northwest to position 41°56′50″ N, 070°34′58″ W; then running northeast back to position 41°57′30″ N, 070°34′36″ W; to the following revised coordinates: all waters of Cape Cod Bay and land adjacent to those waters enclosed by a line beginning at position 41°57′5″ N, 070°34′42″ W; then running southeast to position 41°56′40.5″ N, 070°34′4.5″ W; then running southwest to position 41°56′32″ N, 070°34′14″ W; then running northwest to position 41°56′55.5″ N, 070°34′52″ W; then running northeast back to position 41°57′5″ N, 070°34′42″ W.

These changes remove the majority of the Rocky Point shoal area and all of the White Horse Rocks area from the zones, and reduce the approximate size of the zones by more than half. The specific comment topics and resultant changes (if any) are addressed below.

I. Adequate Protection Can Be Provided By Smaller Zones

The Coast Guard received comments from both the public and Pilgrim Nuclear Power Plant advocating smaller zones. Pilgrim Nuclear Power Plant conducted evaluations based upon Nuclear Regulatory Commission data and concluded that zones approximately 500 yards offshore from the plant would provide adequate protection against waterside threats. Based upon this evaluation and the hardships (as outlined below) the proposed zones threatened to impose on local waterway users, the zones have been reduced in size as described above in this discussion of comments and inthe Background and Purpose section.

II. The Size of the Proposed Zones Would Place an Excessive Burden on the Commercial Lobster Industry By Excluding Fishermen From Frequently Fished Areas, Forcing Fishermen to Crowd Into Other Areas and Reducing Their Income

Many comments related concerns that the proposed zones' boundaries would exclude lobstermen from highly productive lobstering areas, namely the White Horse Rocks and the Rocky Point shoal areas. At the time the NPRM was issued the Coast Guard was still investigating the potential impacts of the zones on the commercial fishing community. Upon consulting with local and state lobsterman officials as well as the Massachusetts Division of Marine Fisheries, it was determined that a significant amount of the lobster landings for Plymouth, MA, come from these areas and a significant amount of lobstermen depend upon those areas for their livelihoods. The revised and reduced boundaries, as supported by the studies conducted by the Pilgrim Plant and Nuclear Regulatory Commission, will allow the lobstermen to fish the vast majority of the highly productive lobstering areas from which they would have been originally excluded. A small portion of Rocky Point shoal area must remain inside the revised boundaries due to its proximity to the Pilgrim Plant.

III. The Regulation May Affect Private Boat Ramps on the Adjacent Priscilla Beach and Access to This Beach. It May Also Affect Private Property Abutting the Pilgrim Nuclear Power Plant

Some comments raised concerns regarding the extent of the proposed zones' boundaries, and that they might extend over public beaches, property, and boat ramps. The boundaries of the zones (both proposed and revised) at no time extended over any public beaches, private property, or public or private boat ramps outside Pilgrim Nuclear Power Plant property. As a result, we made no changes in response to these comments.

IV. The Proposed Zones Prevent Recreational Boats From Using the Safest Transit Path To and From Priscilla Beach Between White Horse Rocks and the Beach

Many comments stated concerns that proposed zones extended far enough offshore that it would force recreational boats to go around White Horse Rocks to transit to and from Priscilla Beach. They stated this could be dangerous in the instance boats needed to quickly return to shore due to a storm. The revised boundaries will allow recreational boaters to safely utilize their desired transit path between the zones and the White Horse Rocks area.

V. Additional Public Meetings and an Extension of the Comment Period Are Needed To Allow More Involvement of the Priscilla Beach Residents, and To Determine the Economic Impacts on the Local Lobstermen

A few comments requested extension of the comment period and additional public meetings. The comment period for the proposed rule was nearly 3 months long and numerous comments from Priscilla Beach residents were received. A public meeting was held with 87 participants, some of whom were Priscilla Beach residents. Due to the fact that the zones will not encompass any of Priscilla Beach, its adjacent private property, or the surrounding public and private boat ramps, and the fact that impacts on recreational boat transits to and from the beach will be negligible under the revised boundaries, the Coast Guard did not extend the comment period or schedule another public meeting.

In addition, lobstermen wished to have a separate meeting with the Coast Guard to determine the potential income loss they might experience due to the implementation of the zones. It was determined at the February 6, 2002 public meeting that the comment submission process provided a better avenue to document and address these issues, since lobstermen could easily determine their incomes and potential losses on their own without Coast Guard aid. All lobstermen who felt their livelihoods might be impacted by the zones were asked to submit comments supporting these claims during the comment period. The Coast Guard received four comments specifically detailing potential economic losses and the amount of lobstermen who would be impacted by the proposal.

VI. Safety and Security Zones Are Not Needed Due to the Large Number of Local Mariners Watching the Water as They Operate Off of the Pilgrim Plant

Many comments were from local mariners convinced that the zones are not necessary because the local mariners know each other in the vicinity of the plant, and would notice anything or anyone out of the ordinary. While the Coast Guard appreciates reports of suspicious activity from the public, such a public “neighborhood watch” group would not serve the same purpose, nor offer the same protection, as the safety and security zones. Local mariners cannot prevent potential terrorists from entering the area, they cannot board suspicious vessels, and they cannot remove suspicious persons or vessels from the area, and thus cannot be used in place of these safety and security zones.

VII. A Check-In System Should Be Established To Let People In and Out of the Zones

Some comments advocated a system to allow mariners to check in and out of the zones. Many systems were proposed including coded gates, tracking devices, and special identification and call in procedures, among others. A check-in procedure was established for the small number of commercial lobstermen whose livelihoods were effected by the temporary zones around the Plant. However, we feel such a system would be unpractical for recreational boats due to their large numbers. In addition, the need for any such system at this time is unnecessary considering the new boundaries of the zones, which will allow mariners to fish and transit within approximately 500 yards of the plant.

VIII. Buoys or Other Markers May Be Needed To Delineate the Zones

Some comments stated that markers to delineate the zones were essential. Others stated they did not want markers that would cause too much noise or be lit too brightly (such as buoys). The purpose of this regulation is solely to establish zones, it will not be used to mandate marking systems for the zones. However, the Coast Guard has determined marking of the zones may be beneficial and, along with the Pilgrim Power Plant, is considering whether to permit marking the zones with private aids to navigation. Markings placed, if any, will be certified by the First Coast Guard District Aids to Navigation Office, and their lights and sounds will not negatively impact communities on nearby Priscilla Beach.

IX. The Zones Should Be Made “Impenetrable” With Physical Barriers Such as Submarine Nets and Defense Systems Such as Missiles

Some comments sought the establishment of additional defense systems including physical barriers and anti-aircraft systems. The Coast Guard is currently in consultation with the Plant on static enforcement measures. However, it is beyond the scope of this rulemaking to address landside and air security improvements, or specify enforcement techniques. Thus, no action will be taken on comments within these categories.

X. The Public Wants To Know Who Will Enforce the Zones, When They Will Be There, and How Violators Will Be Dealt With

Some comments sought information on the enforcement of the zones. Coast Guard cutters, small boats, and air assets will enforce the zones with the assistance of others, including but not limited to, Massachusetts State Police and Environmental Police, and local harbormasters. In addition, Pilgrim Plant security will report any suspicious activity immediately to the Coast Guard.

Patrolling of the zones will be varied. Patrol schedules are a matter of agency discretion and will not be divulged to the public in advance. Violators of the zones will be subject to all provisions of applicable law and at a minimum will be escorted out of the zones by the Coast Guard or representative on scene. Depending on the circumstances, zone violators may receive any penalty up to the maximum penalties prescribed under the Background and Purpose section.

XI. The Public Wants To Know What Types of Vessels or Attacks Could Damage the Plant

Some comments sought information on what types of vessels could damage the plant. Potentially any vessel or person that could get inside these zones could damage the Pilgrim Nuclear Power Plant. This is why these zones are needed to prevent people and vessels from approaching the plant waterfront, and access to the zones will not be allowed without COTP Boston, MA approval.

XII. Small Recreational Vessels Traveling Far Offshore To Avoid Entering the Plant May Be Forced Into Rough Seas.

Some comments expressed concerns that the size of the proposed zones would force small recreational boats far offshore as they transited around it, posing a danger even in moderate weather. The revised boundaries of the zones will allow mariners to use traditionally available routes and transit much closer to shore as they pass across the front of the plant, as close as approximately 500 yards.

XIII. The Coast Guard Needs To Ensure Strict Interpretation of the Boundaries of the Zones

Some comments expressed concerns that local and state law enforcement assisting the Coast Guard might misinterpret the boundaries of the zones or not uniformly enforce them. The Coast Guard has a long history of working with local and state authorities in the enforcement of safety and security zones. The public can be certain that any agency assisting the Coast Guard will appropriately enforce the boundaries of the zones.

XIV. Allowances Should Be Made for the Event a Boat or Fishing Gear Is Forced Into the Zones By Inclement Weather

Some comments sought information on how fishermen could retrieve gear that happened to drift into the zones, or what would happen to a vessel if it were accidentally forced into the zones by bad weather. The Coast Guard understands that accidental or unforeseen situations sometimes arise. The Coast Guard will make allowances for vessels to enter the zones to retrieve gear, and will not typically take enforcement action against vessels forced into the zones by inclement weather, except to remove them from the zones. In all cases, it is expected that mariners who have a legitimate need to enter the zones will request permission in advance of entering.

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 Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this rule to be minimal enough that a full regulatory evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. The effect of this regulation will not be significant because there is ample room for vessels to navigate around the zones in Cape Cod Bay, and due to the reasons enumerated under the Discussion of Comments section.

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” 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. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit, fish, or anchor in a portion of Cape Cod Bay. For the reasons enumerated in the Discussion of Comments section above, these safety and security zones will not have a significant economic impact on a substantial number of small entities.

Assistance for Small Entities

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If your small business or organization would be affected by this final rule and you have questions concerning its provisions or options for compliance, please call Lieutenant Dave Sherry, Marine Safety Office Boston, at [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 would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

The Coast Guard analyzed this rule under Executive Order 13132, Federalism, and has 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) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

Taking of Private Property

This rule would 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

The Coast Guard 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 pose 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. A rule with tribal implications has 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.

Environment

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (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 where indicated under ADDRESSES.

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.

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 § 165.115 to read as follows:

§ 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°57′5″ N, 070°34′42″ W; then running southeast to position 41°56′40.5″ N, 070°41′4.5″ W; then running southwest to position 41°56′32″ N, 070°34′14″ W; then running northwest to position 41°56′55.5″ N, 070°34′52″ W; then running northeast back to position 41°57′5″ N, 070°34′42″ W.

(b) Regulations. (1) In accordance with the general regulations in §§ 165.23 and 165.33 of this part, entry into or movement within these zones is prohibited unless authorized by the Captain of the Port Boston.

(2) All vessel operators shall comply with the instructions of the COTP or the designated on-scene U.S. Coast Guard patrol personnel. On-scene Coast Guard patrol personnel include commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, local, state, and federal law enforcement vessels.

(3) No person may enter the waters or land area within the boundaries of the safety and security zones unless previously authorized by the Captain of the Port, Boston or his authorized patrol representative.

Dated: May 16, 2002.

B.M. Salerno,

Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.