[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Rules and Regulations]
[Pages 37600-37603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15156]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0508]
RIN 1625-AA00


Safety Zone; Arctic Drilling and Support Vessels, Puget Sound, WA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone around 
the nineteen vessels associated with Arctic drilling as well as their 
lead towing vessels while those vessels are underway in the Puget Sound 
Captain of the Port Zone. The safety zone is necessary to ensure the 
safety of the maritime public and specified vessels while they transit 
and will do so by prohibiting any person or vessel from entering or 
remaining in the safety zone unless authorized by the Captain of the 
Port or a Designated Representative.

DATES: This rule is effective with actual notice from June 7, 2012, 
until June 22, 2012. This rule is effective in the Code of Federal 
Regulations from June 22, 2012 through August 1, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0508. 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

[[Page 37601]]

email Ensign Anthony P. LaBoy, Waterways Management Division, Coast 
Guard Sector Puget Sound; Coast Guard; telephone 206-217-6323, email 
[email protected]. 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 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 it would be impracticable. Due to the 
hazardous conditions discussed below, it is necessary to make this 
regulation effective immediately in order to ensure the safety of the 
maritime public while the named vessels are transiting.
    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. It is impracticable to have a 
delayed effective date because some of the specified vessels are 
currently in Puget Sound. Immediate action is necessary to protect the 
public from the threat to navigational safety posed by such tactics or 
activities as described above.

B. Basis and Purpose

    In June 2011, Greenpeace protestors illegally boarded Cairn 
Energy's drilling platform off Greenland. Greenpeace has identified 
that both Shell and British Petroleum are possible future targets in 
2012 and 2013. On February 16, 2012, the environmental advocacy 
organization Alaska Wilderness League made local inquiries and 
chartered a vessel to observe the mobile offshore drilling unit (MODU) 
KULLUK, which is currently undergoing retro-fit at Vigor shipyard in 
Seattle. On February 26, 2012, actress Lucy Lawless and six Greenpeace 
activists illegally boarded the drilling vessel NOBLE DISCOVERER in New 
Zealand. On March 16 2012, Greenpeace activists boarded the Finnish 
icebreaker FENNICA, a Shell-contracted vessel, and hung banners from 
the vessel's cranes. On May 1-4, 2012, Greenpeace activists conducted 
multi-faceted direct action operations aimed at delaying the transit of 
the Finnish icebreaker NORDICA, a Shell-contracted vessel. Activists 
boarded the vessel while moored, blocked the vessel with kayaks and 
swimmers as it got underway, and boarded the vessel while underway at 
sea via small boats. Further on 31 May 2012, the Greenpeace motor 
vessel ESPERANZA entered Elliott Bay. While the Coast Guard respects 
the First Amendment rights of protesters, it is clear that certain 
unlawful protest activity poses a danger to the life and safety of 
protesters, target vessels, and other legitimate waterway users. The 
Coast Guard must take swift action to prevent such harm.
    The following vessels associated with exploratory drilling in the 
Arctic may be transiting into, out of, or around the Sector Puget Sound 
Captain of the Port (COTP) Zone from now until August 1st 2012: NOBLE 
DISCOVERER, KULLUK, NORDICA, FENNICA, TOISA DAUNTLESS, TOR VIKING II, 
HARVEY EXPLORER, HARVEY SPIRIT, HARVY SISUAQ, AIVIQ, NANUQ, GUARDSMAN, 
KALMATH, ARCTIC CHALLENGER, Z BIG 1, LAUREN FOSS, CORBIN FOSS, ARCTIC 
ENDEAVOR, POINT OLIKTOK and any towing vessel actively engaged in the 
towing or escorting of these vessels. Based on a recent history of 
unsafe demonstration tactics and vessel boardings of some of these 
vessels in New Zealand and Finland within the past six months, the 
Coast Guard finds it necessary to establish this temporary safety zone 
in order to allow for safe and lawful on-water protests without 
endangering the lives or safety of any person or vessel, and to keep 
the waterways unrestricted to all legitimate users.
    Persons or vessels positioned in the path of the specified vessels, 
all of which are extremely large, and many of which transit with tow or 
tug assistance, would present an extremely hazardous situation. Named 
vessels could be forced to deviate from their routes into more shallow 
water, out of an established traffic scheme or International Maritime 
Organization established Traffic Separation Scheme, or into otherwise 
unsafe conditions. This could create a hazardous situation where the 
aforementioned vessels would be at risk of collision or grounding or 
break down the good order and predictability of vessel traffic flow in 
the Vessel Traffic Service area of operations. Additionally, persons in 
the water and small vessels coming within 500 yards of one of the 
oncoming named vessels may be injured or killed in a collision, 
especially since the larger of the named vessels, including those 
vessels in tow, may be unable to see such persons or small vessels, and 
would not be able to stop, reduce speed, or turn quickly enough to 
avoid a collision. In addition, blocking of the waterway or portions of 
the waterway, and maneuvering close to large vessels underway could 
expose other legitimate waterway users to similar risks of grounding or 
collision, and expose persons or vessels engaged in such tactics to 
collisions with other waterway users. This risk is exacerbated by areas 
of congestion within the Puget Sound COTP Zone. Tacoma and Seattle 
together comprise the 3rd largest container ship port in the United 
States. In addition, the Puget Sound COTP Zone has the largest ferry 
system in the United States. As such, persons and small vessels in 
Puget Sound must contend with numerous large container ships and 
ferries transiting Puget Sound, in addition to other waterway users 
such as recreational vessels, construction vessels, public vessels, and 
others.

C. Discussion of the Final Rule

    In order to improve safety in light of the considerations above, 
the Coast Guard is establishing a temporary safety zone to restrict 
vessel movement around the vessels specified in the Background section 
of this notice. The safety zone established by this rule will prohibit 
any person or vessel from entering or remaining within 500 yards of the 
following specified vessels, unless authorized by the COTP or his 
Designated Representative, while in the Sector Puget Sound COTP Zone: 
NOBLE DISCOVERER, KULLUK, NORDICA, FENNICA, TOISA DAUNTLESS, TOR VIKING 
II, HARVEY EXPLORER, HARVEY SPIRIT, HARVY SISUAQ, AIVIQ, NANUQ, 
GUARDSMAN, KALMATH, ARCTIC CHALLENGER, TUUQ, LAUREN FOSS, CORBIN FOSS, 
ARCTIC ENDEAVOR, and POINT OLIKTOK. This safety zone includes any 
associated towing and assist vessels, and associated towing equipment, 
including the towline. The COTP has granted general permission for 
vessels to enter the outer 400 yards of the safety zone, aft of the 
pilot house of these vessels, or the lead towing vessel for those 
vessels in tow, as long as those vessels within the outer 400 yards of 
the safety zone operate at the minimum

[[Page 37602]]

speed necessary to maintain course unless required to maintain speed by 
the navigation rules.
    It is noted that in March of 2012, the U.S. District Court for the 
District of Alaska issued a preliminary injunction order in a civil 
case between Shell Oil, Inc., and Greenpeace. This civil injunction 
generally requires Greenpeace to remain 500-1000 yards away from the 
named vessels. The Coast Guard is not required to enforce this 
injunction, and will not do so. This regulation is separate and 
distinct from the civil injunction, and is applicable to all vessels, 
whether or not they are acting on behalf of Greenpeace, and whether or 
not the persons aboard are engaged in any sort of protests or 
demonstration. The purpose of the present regulation is to protect the 
safety of all legitimate waterway users.

D. 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.

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. The Coast Guard bases 
this finding on the fact that the safety zone will be in place for a 
limited period of time and vessel traffic will be able to transit 
around the safety zone. Maritime traffic may also request permission to 
transit through the zones from the COTP, Puget Sound, or Designated 
Representative.

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 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 and operators of vessels intending to 
operate in the waters covered by the safety zone while it is in effect. 
The rule will not have a significant economic impact on a substantial 
number of small entities because the safety zone will be in place for a 
limited period of time and maritime traffic will still be able to 
transit around the safety zone. Maritime traffic may also request 
permission to transit though the zone from the COTP, Puget Sound, or 
Designated Representative.

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. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received 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.

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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 an emergency safety zone for all waters 
encompassed within 500 yards of the Arctic drilling and support 
vessels. 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. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from this 
rule.

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; 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, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T13-221 to read as follows:


Sec.  165.T13-221  Safety Zone; Arctic Drilling and Support Vessels, 
Puget Sound, Washington.

    (a) Location. The following area is a safety zone: All waters 
encompassed within 500 yards of the following vessels: NOBLE 
DISCOVERER, KULLUK, NORDICA, FENNICA, TOISA DAUNTLESS, TOR VIKING II, 
HARVEY EXPLORER, HARVEY SPIRIT, HARVY SISUAQ, AIVIQ, NANUQ, GUARDSMAN, 
KALMATH, ARCTIC CHALLENGER, TUUQ, LAUREN FOSS, CORBIN FOSS, ARCTIC 
ENDEAVOR, and POINT OLIKTOK, to include the lead towing vessels and 
assist tugs, and associated towing gear, including the towline, while 
these vessels are transiting in the Sector Puget Sound Captain Of The 
Port (COTP) Zone as defined in 33 CFR 3.65-10.
    (b) Regulations. In accordance with the general regulations in 33 
CFR part 165, subpart C, no person may enter or remain in the safety 
zone created in this rule unless authorized by the COTP or his 
Designated Representative. A ``designated representative'' is any Coast 
Guard commissioned, warrant or petty officer of the U.S. Coast Guard 
who has been designated by the COTP to act on his or her behalf. The 
COTP has granted general permission for persons or vessels to enter the 
outer 400 yards of the safety zone, aft of the pilot house of the 
vessel or lead towing vessels, as applicable, as long as those vessels 
within the outer 400 yards of the safety zone operate at the minimum 
speed necessary to maintain course unless required to maintain speed by 
the navigation rules. The COTP may be assisted by other federal, state, 
or local agencies with the enforcement of the safety zone.
    (c) Authorization. All vessel operators who desire to enter the 
inner 100 yards of the safety zone or transit the outer 400 yards at 
greater than minimum speed necessary to maintain course unless required 
to maintain speed by the navigation rules must obtain permission from 
the COTP or a Designated Representative by contacting the on-scene 
Coast Guard patrol craft on VHF 13 or Ch 16. Requests must include the 
reason why movement within this area is necessary. Vessel operators 
granted permission to enter the safety zone will be escorted by the on-
scene Coast Guard patrol craft until they are outside of the safety 
zone.
    (d) Enforcement Period This rule will be enforced through August 1, 
2012, unless canceled sooner by the Captain of the Port.

    Dated: June 7, 2012.
S.J. Ferguson,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 2012-15156 Filed 6-21-12; 8:45 am]
BILLING CODE 9110-04-P