02-14965. Security Zone; Missouri River, Mile Marker 646.0 to 645.6, Fort Calhoun, NE

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is amending the temporary final rule for the security zone at the Fort Calhoun Nuclear Power Plant published March 7, 2002, to permit deeper draft vessels that must use the navigable channel to safely navigate the river, to transit through the security zone. We are also extending the effective period of this established security zone until October 15, 2002, to allow adequate time for a proposed permanent rule to be developed through informal rulemaking. This temporary rule will continue to prohibit entry of persons and vessels into this security zone except as authorized by this section or by the Captain of the Port St. Louis.

DATES:

The amendments to § 165.T08-001 are effective on June 13, 2002. Section 165.T08-001, added at 67 FR 10327, March 7, 2002, effective from 12 p.m. January 7, 2002, through 8 a.m. June 15, 2002 is extended and will remain in effect through 8 a.m. on October 15, 2002.

ADDRESSES:

Documents indicated in this preamble as being available in the docket, are part of docket [COTP St. Louis -02-001] and are available for inspection or copying at Marine Safety Office St. Louis, 1222 Spruce St., Rm. 8.104E, St. Louis, Missouri 63103-2835, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant (LT) David Webb, Marine Safety Detachment Quad Cities, Rock Island, IL at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On March 7, 2002, we published a temporary final rule entitled “Security Zone; Missouri River, Mile Marker 646.0 to 645.6, Fort Calhoun, NE” in the Federal Register (67 FR 10325). The effective period for this rule was from January 7, 2002 until June 15, 2002.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The original temporary final rule was immediately required to respond to the security concerns associated with nuclear power plant facilities. It was anticipated that we would assess the security environment at the end of the effective period to determine whether continuing security measures were required.

We have determined that the need for a continued security zone regulation exists. The Coast Guard will, during the effective period of this temporary final rule, complete notice and comment rulemaking for permanent regulations tailored to the present and foreseeable security environment.

Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register. This extension preserves the status quo for many vessels and is less restrictive for vessels that can only safely navigate within the navigable channel. While there is no indication that the present temporary final rule has been burdensome on the public it is being amended to reflect changes made in the notice of proposed rulemaking to make this a permanent security zone. Delaying the effective date of the rule would be contrary to public interest since action is needed to continue to respond to existing security risks.

Background and Purpose

On September 11, 2001, both towers of the World Trade Center and the Pentagon were attacked by terrorists. National security and intelligence officials have warned that future terrorist attacks against civilian targets may be anticipated.

In response to these terrorist acts and warnings, heightened awareness for the security and safety of all vessels, ports, and harbors is necessary. Due to the increased safety and security concerns surrounding nuclear power plants, the Captain of the Port, St. Louis established a temporary security zone around the Fort Calhoun Nuclear Power Plant in Fort Calhoun, Nebraska.

This zone includes all water extending 75 feet from the shoreline of the right descending bank on the Missouri River, beginning at mile marker 646.0 and ending at mile marker 645.6. This security zone contains a portion of the navigable channel of the Missouri River. All vessels that may safely navigate outside of the channel are prohibited from entering the security zone without the express permission of the Captain of the Port St. Louis or his designated representative. Vessels requiring use of the channel for safe navigation are authorized entry into the zone but must remain within the channel unless otherwise expressly authorized by the Captain of the Port St. Louis or his designated representative.

The temporary security zone was to expire on June 15, 2002. In order to provide continuous protection while a permanent zone is being promulgated through notice and comment rulemaking, the Coast Guard is extending the effective date of this zone until October 15, 2002.

Regulatory Evaluation

This 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 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 so minimal that a full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The impacts on routine navigation are expected to be minimal as the zone allows deeper draft vessels to continue their transit, provided that they remain within the channel. Vessels that must transit through the security zone who are not required to transit the navigable channel or who wish to transit outside of the channel may seek permission from the Captain of the Port St. Louis or his designated representative.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 for the reasons enumerated under the Regulatory Evaluation above. If you are a small business entity and are significantly affected by this regulation please contact LT Dave Webb, U.S. Coast Guard Marine Safety Detachment Quad Cities, Rock Island Arsenal Bldg 218, Rock Island, IL 61299-0627 at [phone].

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.

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, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will 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 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 Effect

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. A “Categorical Exclusion Determination” is available 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, 160.5; 49 CFR 1.46.

2. Revise temporary § 165.T08-001 paragraphs (b) and (d) to read as follows:

§ 165.T08-001

Security Zone; Missouri River, Mile Marker 646.0 to 645.6, Fort Calhoun, Nebraska.

* * * * *

(b) Effective dates. This section is effective from 12 p.m. on January 7, 2002 through 8 a.m. on October 15, 2002.

* * * * *

(d) Regulations. (1) Entry into this security zone by persons or vessels is prohibited unless authorized by the Coast Guard Captain of the Port St. Louis or his designated representative.

(2) All vessels that can safely navigate outside of the channel are prohibited from entering the security zone without the express permission of the Captain of the Port St. Louis or his designated representative. Deeper draft vessels that are required to use the channel for safe navigation are authorized entry into the zone but must remain within the channel unless expressly authorized by the Captain of the Port St. Louis or his designated representative.

(3) Vessels or persons requiring permission to enter into the security zone must contact the Captain of the Port, St. Louis at telephone number [phone] or Marine Safety Detachment Quad Cities at telephone number [phone] or Coast Guard Group Upper Mississippi River at telephone number [phone] or on VHF marine channel 16 in order to seek permission to enter the security zones. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port, St. Louis or his designated representative.

(4) Designated representatives are commissioned, warrant, and petty officers of the U.S. Coast Guard.

Dated: June 7, 2002.

E.A. Washburn,

Commander, U.S. Coast Guard, Captain of the Port St. Louis.