[Federal Register Volume 80, Number 149 (Tuesday, August 4, 2015)]
[Rules and Regulations]
[Pages 46194-46197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19120]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-0543]
RIN 1625-AA00; 1625-AA11


Safety Zones and Regulated Navigation Area; Shell Arctic 
Drilling/Exploration Vessel and Associated Voluntary First Amendment 
Area, Portland, OR

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary safety zones around 
Royal Dutch Shell's (Shell) contracted vessel FENNICA, which is 
participating in Shell's planned Arctic oil drilling and exploration 
operations, while it is located in the U.S. Territorial and Internal 
Waters of the Sector Columbia River 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 FENNICA and those 
individuals that desire to exercise their First Amendment rights.

DATES: This rule is effective without actual notice from August 4, 2015 
until August 22, 2015. For the purposes of enforcement, actual notice 
will be used from July 22, 2015 until August 4, 2015.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2015-0543 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 Commander Laura Springer, Waterways Management 
Division, Coast Guard Marine Safety Unit Portland; telephone (503) 240-
2594, 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 Shell contracted 
vessel FENNICA and those individuals that desire to exercise their 
First Amendment rights regarding Shell's activities and holding a 
notice and comment period at this time would delay regulatory 
implementation beyond the arrival of the FENNICA and expected start of 
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

[[Page 46195]]

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 summer of 2015. One of the Shell contracted vessels related to 
these operations, FENNICA, has been damaged and will be returning to 
Portland, Oregon for repairs. Over the last several months there has 
been significant waterborne First Amendment activity related to Shell's 
operations, particularly in the Puget Sound region, and the Coast Guard 
believes there will be similar activity in the greater Portland area 
related to FENNICA's presence there. The First Amendment activity 
previously observed includes unauthorized boardings of Shell contracted 
vessels and the formation of a ``kayak flotilla'' designed to protest 
as well as attempt to block Shell contracted vessels from departing for 
the Arctic.
    Draft restrictions, vessel maneuvering characteristics, and 
geographic/environmental conditions may constrain the ability of large 
commercial vessels such as FENNICA 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, at anchor, and in drydock 
the FENNICA 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 a safety zone around the FENNICA is 
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 
the FENNICA, a Shell contracted vessel involved in the company'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 FENNICA will encompass all waters within a rectangle 
measuring 500 yards in front and 100 yards to the port, starboard, and 
astern of that vessel and any other vessel actively engaged in towing 
or escorting it. Per subsection (a)(1)(ii), while moored, anchored, or 
in drydock, the safety zone around FENNICA 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, Columbia River by contacting the 
Coast Guard Sector Columbia River Command Center at 866-284-6958 or 
503-861-6211, 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. 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 a ``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

[[Page 46196]]

``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 area are in effect. The 
safety zones and regulated navigation area 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.

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.

[[Page 46197]]

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.T13-292 to read as follows:


Sec.  165.T13-292  Safety Zones and Regulated Navigation Area; Shell 
Arctic Drilling/Exploration Vessel and Associated Voluntary First 
Amendment Area, Portland, OR.

    (a) Safety Zones--(1) Location. The following areas are designated 
as safety zones:
    (i) All waters within a rectangle measuring 500 yards in front and 
100 yards to the port, starboard, and astern of the vessel FENNICA and 
any other vessel actively engaged in towing or escorting it while 
transiting within the U.S. Territorial or Internal Waters of the Sector 
Columbia River Captain of the Port Zone as defined in 33 CFR 3.65-15.
    (ii) All waters within 100 yards of the vessel FENNICA while 
moored, anchored, or in drydock within the U.S. Territorial or Internal 
Waters of the Sector Columbia River Captain of the Port Zone as defined 
in 33 CFR 3.65-15.
    (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, Columbia River or 
his designated representative. To request permission to enter one of 
these safety zones contact the Coast Guard Sector Columbia River 
Command Center at 866-284-6958 or 503-861-6211, 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 Swan Island 
Basin south east from a line connecting the following points: 
45[deg]34'04'' N, 122[deg]42'57'' W and 45[deg]34'00'' N, 
122[deg]43'03'' W.
    (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 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 22, 2015 through 
August 22, 2015.

    Dated: July 22, 2015.
D.L. Cottrell,
Captain, U.S. Coast Guard, Acting Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2015-19120 Filed 8-3-15; 8:45 am]
 BILLING CODE 9110-04-P