[Federal Register: October 2, 2009 (Volume 74, Number 190)]
[Rules and Regulations]
[Page 50922-50925]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc09-4]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2009-0311]
RIN 1625-AA00
Direct Final Rule; Safety and Security Zones: Pilgrim Nuclear
Power Plant, Plymouth, MA
AGENCY: Coast Guard, DHS.
ACTION: Direct final rule; request for comments.
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SUMMARY: By this direct final rule, the Coast Guard is amending
existing regulations with a set of coordinates which will better
reflect the safety and security zone around the Pilgrim Nuclear Power
Plant. This action will prohibit entry into, or movement within, the
safety and security zones located in Cape Cod Bay and adjacent shore
areas. This action is necessary to ensure public safety and prevent
sabotage or terrorist acts. 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.
DATES: This rule is effective December 31, 2009, unless an adverse
comment, or notice of intent to submit an adverse comment, is either
submitted to our online docket via http://www.regulations.gov on or
before December 1, 2009 or reaches the Docket Management Facility by
that date. If an adverse comment, or notice of intent to submit an
adverse comment, is received by December 1, 2009, we will withdraw this
direct final rule and publish a timely notice of withdrawal in the
Federal Register.
ADDRESSES: You may submit comments identified by docket number USCG-
2009-0311 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, e-
mail or call Chief Eldridge McFadden, U.S. Coast Guard, Sector Boston,
Waterways Management Division; telephone 617-223-5160, e-mail
Eldridge.C.McFadden@uscg.mil. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Public Meeting
II. Abbreviations
III. Regulatory Information
IV. Background
V. Discussion of the Rule
VI. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2009-0311), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Proposed Rule'' and insert ``USCG-2009-0311'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column.If you submit your comments by mail or hand delivery, submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2009-0311'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
If you do not have access to the internet, you may also view the docket
online by visiting the Docket Management Facility in Room W12-140
[[Page 50923]]
on the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. We have an
agreement with the Department of Transportation to use the Docket
Management Facility.
C. Privacy Act
Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).
D. Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the docket using one of the methods specified under
ADDRESSES. In your request, explain why you believe a public meeting
would be beneficial. If we determine that one would aid this
rulemaking, we will hold one at a time and place announced by a later
notice in the Federal Register.
II. Abbreviations
DHS Department of Homeland Security;
FR Federal Register;
Sec. Section symbol;
U.S.C. United States Code.
III. Regulatory Information
We are publishing this direct final rule under 33 CFR 1.05-55
because we do not expect an adverse comment. If no adverse comment or
notice of intent to submit an adverse comment is received by December
31, 2009, this rule will become effective as stated in the DATES
section. In that case, approximately 30 days before the effective date,
we will publish a document in the Federal Register stating that no
adverse comment was received and confirming that this rule will become
effective as scheduled. However, if we receive an adverse comment or
notice of intent to submit an adverse comment, we will publish a
document in the Federal Register announcing the withdrawal of all or
part of this direct final rule. If an adverse comment applies only to
part of this rule (e.g., to an amendment, a paragraph, or a section)
and it is possible to remove that part without defeating the purpose of
this rule, we may adopt, as final, those parts of this rule on which no
adverse comment was received. We will withdraw the part of this rule
that was the subject of an adverse comment. If we decide to proceed
with a rulemaking following receipt of an adverse comment, we will
publish a separate notice of proposed rulemaking (NPRM) and provide a
new opportunity for comment.
A comment is considered ``adverse'' if the comment explains why
this rule or a part of this rule would be inappropriate, including a
challenge to its underlying premise or approach, or would be
ineffective or unacceptable without a change.
IV. Background
Safety and security zones were established to safeguard the Pilgrim
Nuclear Power Plant in light of terrorist attacks on New York City and
Washington, DC on September 11, 2001. The zones were implemented to
protect persons at the facility, the public, and surrounding
communities from sabotage or other subversive acts, accidents, or other
similar events. The Pilgrim Nuclear Power Plant is a possible target of
terrorist attack due to the potential catastrophic impact an attack
would have on such a plant. Established safety and security zones
prohibit entry into or movement within the specified areas. The
rulemaking regarding this site, published in the Federal Register [67
FR 37689], established 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[deg]57'5'' N, 070[deg]34'42'' W; then running southeast to position
41[deg]56'40.5'' N, 070[deg]34'4.5'' W; then running southwest to
position 41[deg]56'55.5'' N, 070[deg]34'52'' W; then returning to its
point of origin. These positions were incorrect (one of the positions
is in fact 6 miles inland). This regulation aims to correct the
previous regulation.
Buoy markers, which serve as a visual reminder of the safety and
security zone surrounding the Nuclear Power Plant, have already been
placed at the intended coordinates surrounding the plant. This
regulation will amend the existing coordinates, to reflect the
originally intended parameters.
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. All persons and vessels in a safety and security zone must
obey all directions and orders made by the Captain of the Port, or any
other designated on-scene Coast Guard representative. 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. Violations of safety or security
zone described herein, are 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.
V. Discussion of the Rule
The current safety and security zone regulation is erroneous as it
cites incorrect coordinates. This regulation will correct the existing
one by adding coordinates which reflect the actual safety and security
zones delineated by the buoys already put in place by the Pilgrim Power
Plant. The new regulation will change the safety and security zone
from:
41[deg]57'5'' N, 070[deg]34'42'' W; then running southeast to
position 41[deg]56'40.5'' N, 070[deg]34'4.5'' W; then running southwest
to position 41[deg]56'55.5'' N, 070[deg]34'52'' W; then returning to
its point of origin to:
41[deg]56'59.3'' N, 070[deg]34'58.5'' W; thence to 41[deg]57'12.2''
N, 070[deg]34'41.9'' W; thence to 41[deg]56'42.3'' N, 070[deg]34'00.1''
W; thence to 41[deg]56'29.5'' N, 070[deg]34'14.5'' W.
VI. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
A. Regulatory Planning and Review
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. This rule is not a significant regulatory
action because it seeks only to update the previous regulation with the
correct and intended coordinates. These coordinates have already been
marked by buoys, and mariners in the surrounding area already know to
avoid this zone.
[[Page 50924]]
B. 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 would affect the following entities, some of which might
be small entities: Fishermen, and the owners or operators of vessels
intending to transit, fish or anchor in a portion of Cape Cod Bay,
Massachusetts. However, as stated above, because mariners have already
been maintaining a certain distance from the plant, with the assistance
of buoys as visual markers, little to no effect will be realized once
the new regulation is implemented.
Therefore, 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. Comments submitted in response to this
finding will be evaluated under the criteria in the ``Regulatory
Information'' section of this preamble.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 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 will
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please consult Chief Eldridge McFadden, U.S. Coast Guard,
Sector Boston, Waterways Management Division; telephone 617-223-5160,
e-mail Eldridge.C.McFadden@uscg.mil. The Coast Guard will not retaliate
against small entities that question or complain about this rule or any
policy or action of the Coast Guard.
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).
D. 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).
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if the rule 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.
F. 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 expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
G. 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.
H. 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.
I. 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.
J. 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.
K. 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. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded under section 2.B.2,
figure 2-1, paragraph (34)(g) of the Instruction.
This rule involves the correction of safety and security zones
which were implemented in a previous regulation. An environmental
analysis checklist and a categorical exclusion determination are
available in the
[[Page 50925]]
docket where indicated under the ``Public Participation and Request for
Comments'' section of this preamble.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
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
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306,
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5;
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Revise Sec. 165.115(a) to read as follows:
Sec. 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[deg]56'59.3'' N,
070[deg]34'58.5'' W; thence to 1[deg]57'12.2'' N, 070[deg]34'41.9'' W;
thence to 41[deg]56'42.3'' N, 070[deg]34'00.1'' W; thence to
41[deg]56'29.5'' N, 070[deg]34'14.5'' W.
* * * * *
Dated: July 29, 2009.
Nathan E. Knapp,
Commander, U.S. Coast Guard, Captain of the Port Boston, Acting.
[FR Doc. E9-23754 Filed 10-1-09; 8:45 am]
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