[Federal Register Volume 80, Number 137 (Friday, July 17, 2015)]
[Rules and Regulations]
[Pages 42388-42392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17615]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2015-0295]
RIN 1625-AA00; 1625-AA11
Safety Zones and Regulated Navigation Area; Shell Arctic
Drilling/Exploration Vessels and Associated Voluntary First Amendment
Area, Puget Sound, WA, Extension
AGENCY: Coast Guard, DHS.
[[Page 42389]]
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is extending the temporary safety zones and
regulated navigation area that were previously established because the
departure of several of the vessels associated with Royal Dutch Shell's
(Shell) planned Arctic oil drilling and exploration operations have
been delayed. The safety zones and regulated navigation area extended
by this rule are necessary to ensure the mutual safety of all waterways
users including the specified vessels and those individuals that desire
to exercise their First Amendment rights.
DATES: This rule is effective without actual notice from July 17, 2015
through July 31, 2015. For purposes of enforcement, the rule is
effective with actual notice from July 1, 2015 through July 17, 2015.
ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2015-0295. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 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.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Matthew Beck, Waterways Management Division,
Coast Guard Sector Puget Sound; telephone (206) 217-6051, email
[email protected]. If you have questions on viewing or
submitting material to the docket, call Barbara Hairston, Program
Manager, Docket Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
A. Regulatory History and Information
The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because publishing an NPRM would be
impracticable since the regulation is immediately necessary to help
ensure the safety of all waterway users including the specified vessels
and those individuals that desire to exercise their First Amendment
rights and holding a notice and comment period at this time would delay
regulatory implementation beyond the departure of the last Shell
contracted vessel and expected First Amendment activities regarding
Shell's operations, thereby increasing the safety risk to all waterways
users.
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. For reasons identical to those
described above, delaying the effective date until 30 days after
publication would be impracticable since the regulation is immediately
necessary to help ensure the safety of all waterway users.
B. Basis and Purpose
The legal basis for this rule is the Coast Guard's authority to
establish limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR
1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security
Delegation No. 0170.1.
Shell is planning Arctic oil drilling and exploration operations
for the spring and summer of 2015. In preparation for those operations,
it is staging a large number of vessels in the Puget Sound area. There
has been a significant amount of First Amendment activity related to
Shell's operations in the Puget Sound during the last month including
the formation of a ``kayak flotilla'' used to exercise the
participating individuals First Amendment rights regarding Shell's
operations in the region. Among other activities, the ``kayak
flotilla'' attempted to block the POLAR PIONEER's departure from
Seattle, Washington. Also, Greenpeace International members conducted
an unauthorized boarding of a Shell contracted vessel on the high seas.
Draft restrictions, vessel maneuvering characteristics, and geographic/
environmental conditions may constrain the ability of large commercial
vessels (the Shell-contracted vessels) to maneuver in close quarters
with other vessels, particularly small craft piloted by recreational
operators. Intentional close-in interaction of these vessels will
create an increased risk of collision, grounding, or personal injury
for all parties. Furthermore, while moored or at anchor the vessels
will have ongoing operations occurring onboard, some of which could
pose a safety risk to other maritime traffic. The myriad of potential
safety risks to all parties and the port itself is best addressed by
mandating a minimum zone of separation. For these reasons, the Coast
Guard believes that safety zones around the Shell-contracted vessels
are necessary to ensure the safety of all waterways users.
Additionally, the Coast Guard believes that given the nature of the
First Amendment activity expected and the likely type of vessels used
by individuals desiring to express their First Amendment rights, namely
kayaks and other small vessels, a regulated navigation area designating
a Voluntary First Amendment Area is necessary to ensure the safety of
those vessels and persons. The regulated navigation area encompassing
the Voluntary First Amendment Area would do so by establishing it as a
``no wake'' area, which is particularly important for small boats such
as kayaks, to better enable persons and vessels to congregate and
exercise their First Amendment rights safely and without interference
from or interfering with other maritime traffic.
This rule is extending the rule established at 33 Code of Federal
Regulations (CFR) Sec. 165.T13-289 as published in the Federal
Register (80 FR 23445) due to the fact that the departure from the
Puget Sound of several of the vessels associated with Shell's planned
Arctic oil drilling and exploration operations have been delayed.
C. Discussion of the Final Rule
In this rule, the Coast Guard is extending the temporary safety
zones and regulated navigation area established at 33 CFR 165.T13-289
as published in the Federal Register (80 FR 23445).
The safety zones are established in subsection (a) of this
temporary regulation. Per subsection (a)(1)(i), while transiting, the
safety zone around each of the vessels will encompass all waters within
500 yards of the vessel in all directions. Per subsection (a)(1)(ii),
while moored or anchored, the safety zone around each of the vessels
will encompass all waters within 100 yards of the vessel in all
directions. Persons and/or vessels that desire to enter these safety
zones must request permission to
[[Page 42390]]
do so from the Captain of the Port, Puget Sound by contacting the Joint
Harbor Operations Center at 206-217-6001, or the on-scene Law
Enforcement patrol craft, if any, via VHF-FM CH 16.
The Coast Guard is also establishing a regulated navigation area to
ensure the safety of individuals that desire to exercise their First
Amendment rights related to Shell's activities in subsection (b) of
this regulation. The Voluntary First Amendment Area is being
established in an area where we believe individuals will be able to
effectively communicate their message, without posing an undue risk to
maritime safety, after analyzing maritime traffic patterns and other
environmental factors as well as meeting with some groups who have
expressed a desire to exercise their First Amendment rights. The
regulated navigation area encompassing the Voluntary First Amendment
Area will ensure the safety of small boats by establishing it as a ``no
wake'' area for persons and/or vessels to congregate and exercise their
First Amendment rights safely and without interference from or
interfering with other maritime traffic. The ``no wake'' provisions
will ensure all interactions between vessels within the area occur at a
low rate of speed, thereby reducing risk of collision and personal
injury. Likewise, the designation of a Voluntary First Amendment Area
will help to ensure that a large congregation of vessels does not
impede or endanger other commercial and recreational users who are not
associated with Shell's arctic drilling and exploration operations or
the associated First Amendment activity.
These provisions are particularly vital given the expected presence
of the ``kayak flotilla'' described above. Persons or vessels desiring
to exercise their First Amendment rights to free speech regarding
Shell's Arctic drilling and exploration operations may enter the
regulated navigation area at any time. All other persons or vessels are
advised to avoid the regulated navigation area. When inside the
regulated navigation area, all vessels must proceed at ``no wake''
speed and with due regard for all other persons and/or vessels inside
the regulated navigation area.
D. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on these statutes and executive orders.
1. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. This rule is not a
significant regulatory action as the safety zones and regulated
navigation area are limited in both size and duration and any person
and/or vessel needing to transit through the safety zones or regulated
navigation area may be allowed to do so in accordance with the
regulatory provisions.
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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 the affected waterways when the safety zones and
regulated navigation areas are in effect. The safety zones and
regulated navigation areas will not have a significant economic impact
on a substantial number of small entities, however, because the safety
zones and regulated navigation area are limited in both size and
duration and any person and/or vessel needing to transit through the
safety zones or regulated navigation area may be allowed to do so in
accordance with the regulatory provisions.
3. 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. 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 the person listed in the FOR FURTHER INFORMATION CONTACT,
above.
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). 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.
4. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
5. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and determined
that this rule does not have implications for federalism.
6. First Amendment Activities
The Coast Guard respects the First Amendment rights of all
individuals. This regulation establishes a regulated navigation area to
create a Voluntary First Amendment Area so that persons and vessels can
congregate and exercise their First Amendment free speech rights safely
and without interference from or interfering with other maritime
traffic. Of particular note, large vessels operating in restricted
waters cannot maneuver freely, nor can they stop immediately. As such,
any First Amendment activity taking place in immediate proximity to
such vessels can quickly result in extremis. The Voluntary First
Amendment Area has been located to allow individuals a meaningful
opportunity to be heard. Individuals that desire to exercise their
First Amendment rights are asked utilize the designated area to the
extent possible, however, its use is voluntary. Individuals that desire
to exercise their First Amendment rights outside the designated area
are requested to contact the person listed in the FOR FURTHER
[[Page 42391]]
INTFORMATION CONTACT section to coordinate their activities so that
their message can be heard, without jeopardizing the safety or security
of people, places, or vessels.
7. 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 (adjusted for
inflation) 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.
8. Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
9. 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.
10. 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.
11. 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.
12. Energy Effects
This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.
13. Technical Standards
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
14. 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 determined
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves the establishment of temporary safety
zones and a regulated navigation area to deal with an emergency
situation that is one week or longer in duration. This rule is
categorically excluded from further review under paragraph 34(g) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a Categorical Exclusion
Determination are 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
0
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, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.T13-289 to read as follows:
Sec. 165.T13-289 Safety Zones and Regulated Navigation Area; Shell
Arctic Drilling/Exploration Vessels and Associated Voluntary First
Amendment Area, Puget Sound, WA, Extension.
(a) Safety Zones--(1) Location. The following areas are designated
as safety zones:
(i) All waters within 500 yards of the following vessels while
transiting within the U.S. Territorial or Internal Waters of the Sector
Puget Sound Captain of the Port Zone as defined in 33 CFR 3.65-10:
NOBLE DISCOVERER, BLUE MARLIN, POLAR PIONEER, AIVIQ, FENNICA, NORDICA,
ROSS CHOUEST, TOR VIKING, OCEAN WIND, OCEAN WAVE, HARVEY SISUAQ, HARVEY
CHAMPION, HARVEY SUPPORTER, HARVEY EXPLORER, NANUQ, GUARDSMAN, KLAMATH,
PT OLIKTOK, ARCTIC ENDEAVOR, CORBIN FOSS, ACS, ARCTIC CHALLENGER,
ARCTIC SEAL, CROWLEY DIANA G, LAUREN FOSS, TUUQ, BARBARA FOSS, AMERICAN
TRADER, and any other vessel actively engaged in towing or escorting
those vessels.
(ii) All waters within 100 yards of the following vessels while
moored or anchored within the U.S. Territorial or Internal Waters of
the Sector Puget Sound Captain of the Port Zone as defined in 33 CFR
3.65-10: NOBLE DISCOVERER, BLUE MARLIN, POLAR PIONEER, AIVIQ, FENNICA,
NORDICA, ROSS CHOUEST, TOR VIKING, OCEAN WIND, OCEAN WAVE, HARVEY
SISUAQ, HARVEY CHAMPION, HARVEY SUPPORTER, HARVEY EXPLORER, NANUQ,
GUARDSMAN, KLAMATH, PT OLIKTOK, ARCTIC ENDEAVOR, CORBIN FOSS, ACS,
ARCTIC CHALLENGER, ARCTIC SEAL, CROWLEY DIANA G, LAUREN FOSS, TUUQ,
BARBARA FOSS, AMERICAN TRADER, and any other vessel actively engaged in
towing or escorting the listed vessels.
(2) Regulations. In accordance with the general regulations in 33
CFR part 165 Subpart C, no persons or vessels may enter these safety
zones unless authorized by the Captain of the Port, Puget Sound or his
designated representative. To request permission to enter one of these
safety zones contact the Joint Harbor Operations Center at 206-217-
6001, or the on-scene Law Enforcement patrol craft, if any, via VHF-FM
CH 16. If permission for entry into one of these safety zones is
granted, vessels must proceed at a minimum speed for safe navigation.
(b) Regulated navigation area--(1) Location. The following area is
designated as a regulated navigation area: All waters of Elliot Bay
encompassed by lines connecting the following points located between
Seacrest Park and Terminal 5: 47[deg]35'20.47'' N, 122[deg]21'53.32''
W; thence south to 47[deg]35'11.54'' N, 122[deg]21'53.24'' W; thence
west to 47[deg]35'11.47'' N, 122[deg]22'26.44'' W; thence north to
47[deg]35'20.47'' N, 122[deg]22'26.40'' W; thence back to the point of
origin.
(2) Regulations. In accordance with the general regulations in 33
CFR part 165 Subpart B, persons or vessels desiring to exercise their
First Amendment right to free speech regarding Royal Dutch Shell's
Arctic drilling and exploration operations may enter the regulated
navigation area at any time. All other persons or vessels
[[Page 42392]]
are advised to avoid the regulated navigation area. When inside the
regulated navigation area, all vessels must proceed at no wake speed
and with due regard for all other persons and/or vessels inside the
regulated navigation area.
(c) Dates. This rule will be enforced from July 1, 2015 through
July 31, 2015.
Dated: June 29, 2015.
R.T. Gromlich,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard
District.
[FR Doc. 2015-17615 Filed 7-16-15; 8:45 am]
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