[Federal Register Volume 80, Number 81 (Tuesday, April 28, 2015)]
[Rules and Regulations]
[Pages 23445-23448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09858]


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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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary safety zones around 
each vessel associated with Royal Dutch Shell's (Shell) planned Arctic 
oil drilling and exploration operations, and any vessel actively 
engaged in towing or escorting those vessels, while located in the U.S. 
Territorial and Internal Waters of the Sector Puget Sound Captain of 
the Port Zone. In addition, the Coast Guard is establishing a regulated 
navigation area to designate a Voluntary First Amendment Area for 
individuals that desire to exercise their First Amendment free speech 
rights with regards to Shell's operations. The safety zones and 
regulated navigation area created 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 April 28, 2015 
until June 30, 2015. For the purposes of enforcement, actual notice 
will be used from the date the rule was signed, April 15, 2015, until 
April 28, 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

[[Page 23446]]

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 arrival of the Shell contracted 
vessel ``BLUE MARLIN'' and expected start of First Amendment activities 
regarding Shell's operations, thereby increasing the safety risk to all 
waterways users.
    Current projections indicate that the BLUE MARLIN will arrive in 
U.S. Territorial Waters in the vicinity of Puget Sound on or about 
April 17, 2015. Of particular note, Greenpeace international members 
boarded the BLUE MARLIN at sea without authorization. They have since 
departed the vessel but may seek to re-board and subsequently remain 
aboard when the vessel enters U.S. jurisdiction. Additionally, 
environmental groups have announced an intention to form a ``kayak 
flotilla'' in the Puget Sound to exercise their First Amendment rights 
regarding Shell's operations in the region, making this regulation time 
critical to helping ensure maritime safety.
    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; 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; Public Law 107-295, 116 Stat. 2064; 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. 
Recently, it has come to the Coast Guard's attention that a significant 
amount of First Amendment activity related to Shell's operations is 
likely to occur in the Puget Sound. We also note that First Amendment 
activity has already included the unauthorized boarding of a Shell 
vessel on the high seas by Greenpeace members and the formation of a 
``kayak flotilla'' in the Puget Sound to advocate against Shell's 
operations in the region. 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, including, for example, the offloading of the POLAR 
PIONEER from the BLUE MARLIN. 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.

C. Discussion of the Final Rule

    In this rule, the Coast Guard is establishing safety zones around 
specified vessels related to Shell's Arctic oil drilling and 
exploration operations, and a regulated navigation area for a Voluntary 
Free Speech Area that will allow individuals a meaningful opportunity 
to be heard in exercising their First Amendment rights while not 
compromising the safety of maritime traffic or the individuals 
exercising their First Amendment rights.
    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 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

[[Page 23447]]

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 
INFORMATION 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.

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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.

    (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 
subpart C of this part, 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 
subpart B of this part, 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 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 April 15, 2015, through 
June 30, 2015.

    Dated: April 15, 2015.
D.L. Cottrell,
Captain, U.S. Coast Guard, Acting Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2015-09858 Filed 4-27-15; 8:45 am]
 BILLING CODE 9110-04-P