[Federal Register Volume 78, Number 129 (Friday, July 5, 2013)]
[Rules and Regulations]
[Pages 40396-40399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16164]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0551]
RIN 1625-AA00


Safety Zone; America's Cup Safety Zone and No Loitering Area, San 
Francisco, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a safety zone and no loitering 
area in the navigable waters of the San Francisco Bay near Treasure 
Island, CA in support of 2013 America's Cup races. This safety zone and 
no loitering area are established to enhance the safety of spectators 
and mariners near the north east corner of the America's Cup regulated 
area. All persons or vessels are prohibited from entering the safety 
zone and all persons or vessels are prohibited from anchoring or 
otherwise loitering in the no loitering area during the scheduled races 
without the permission of the Captain of the Port or their designated 
representative.

DATES: This rule is effective from July 4, 2013, to September 22, 2013. 
This rule will be enforced during all America's Cup races. A race 
schedule can be found in the docket.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2011-0551. 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 Junior Grade William Hawn, U.S. Coast Guard 
Sector San Francisco; telephone (415) 399-7442 or email at [email protected]. If you have questions on viewing or submitting 
material to the docket, call the Program Manager, Docket Operations, 
telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register

A. Regulatory History and Information

    On January 30, 2012, the Coast Guard published a notice of proposed 
rulemaking (NPRM) proposing to regulate the on-water activities 
associated with the ``America's Cup World Series'' regattas in 2012 and 
the ``Louis Vuitton Cup,'' ``Red Bull Youth America's Cup,'' and 
``America's Cup Finals Match'' scheduled to occur in July, August, and 
September, 2013 (77 FR 04501). After reviewing all comments received in 
response to the NPRM, the Coast Guard published a temporary final rule 
on July 17, 2012, that created a special local regulation (SLR) and 
safety zone, establishing regulated areas on the water to enhance 
safety and maximize access to the affected waterways during the 
America's Cup sailing events (77 FR 41902).
    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a)

[[Page 40397]]

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.'' The Coast Guard is not issuing a notice of proposed 
rulemaking because it is impracticable and contrary to the public 
interest. The need for an expanded safety zone was not known at the 
time the previous regulations were issued for this series of races. 
Only after the Coast Guard learned that the racing vessels involved 
were faster and more dangerous did the need for this safety zone arise. 
The America's Cup races would occur before the rulemaking process would 
be completed, and delaying the effective date of this rule to allow for 
a comment period would be both impracticable and contrary to the public 
interest because it would inhibit the Coast Guard's ability to protect 
spectators and vessels from the hazards associated with a large 
gathering of sailboats for a race. The safety zone and no loitering 
area are necessary to provide for the safety of event participants, 
spectators, and other vessels transiting the area. For the safety and 
time concerns noted, it is in the public interest to have these 
regulations in effect during the event.
    Under 5 U.S.C. 553(d)(3), for the same reasons noted earlier, the 
Coast Guard finds that good cause exists for making this rule effective 
less than 30 days after publication in the Federal Register. A 30 day 
delayed effective date is impracticable and contrary to the public 
interest.

B. Basis and Purpose

    The legal basis for the proposed rule is 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; Public Law 107-295, 116 Stat. 2064; Department of 
Homeland Security Delegation No. 0170.1, which collectively authorize 
the Coast Guard to establish safety zones.
    After further review of safety concerns, the Coast Guard has 
decided to establish a safety zone and no loitering area in the 
navigable waters of the San Francisco Bay near Treasure Island, CA in 
support of 2013 America's Cup races to mitigate the dangers posed by 
spectator congestion and the vessel's rapidly changing, unpredictable 
course, high speed, and potential to capsize. Additionally, there have 
been recent changes in the north east section of the America's Cup race 
area.
    In the interest of time during the creation of the previous rules, 
the enforcement protocols were developed prior to seeing the 72-foot 
America's Cup racing vessels (AC72s) operate on the water in order to 
provide the public ample notice of the activities associated with the 
upcoming sailing races. Since the publication of the aforementioned 
regulations, the Coast Guard has been able to observe the AC72s operate 
on the water. During observation, the Coast Guard identified various 
potential safety hazards for people and vessels operating in proximity 
to the America's Cup racing vessels. The Coast Guard witnessed an AC72 
capsize while executing race maneuvers in high-speed wind conditions 
characteristic of San Francisco and noted safety concerns stemming from 
the AC72's speed, size and unpredictable nature of maneuverability. On 
June 4, 2013, the Coast Guard also had the opportunity to conduct a 
tabletop exercise with America's Cup Race Management, the San Francisco 
Marine Exchange, the San Francisco Bar Pilots, and various other 
members of the maritime community to assess potential safety issues 
relating to the 2013 America's Cup sailing regattas and discuss 
measures for prevention and response. During this exercise, several 
stakeholders raised the subject of the AC72's speed and unpredictable 
maneuverability. Additionally, members of the deep-draft commercial 
shipping community raised concerns pertaining to the anticipated 
diminution of navigability of the shipping channel due to spectator 
crowding and congestion associated with the viewing of the America's 
Cup in vicinity of buoys ``1'' and ``2'', marking the deep water route 
of the San Francisco Bay Regulated Navigation Area, 33 CFR 165.1181, 
depicted on NOAA Chart 18650.

C. Discussion of the Final Rule

    The Coast Guard is establishing a safety zone and a no loitering 
area in the San Francisco Bay near Treasure Island, California during 
America's Cup races in 2013 to enhance the safety of spectators and 
create a predictable flow of traffic for mariners operating near the 
America's Cup race course. This safety zone and no loitering area will 
be effective throughout the duration of the America's Cup races 
scheduled in 2013.
    The racecourse for the 2013 America's Cup sailing regattas will 
require race participants to sail to the north east corner of the 
regulated area, whereupon they will turn sharply south toward the 
finish line. Due to the design of the racecourse and the dangers posed 
by the America's Cup racing vessels conducting abrupt maneuvers in 
close proximity to spectators, the Coast Guard is creating a safety 
zone to provide a safety buffer at the north east corner of the 
regulated area. The Coast Guard is also establishing a no loitering 
area adjacent to the north east corner of the regulated area because of 
the need to minimize congestion in the waters of the commercial 
shipping channel adjacent to the America's Cup regulated area. This no 
loitering area will create a predictable flow of traffic in waters 
between Treasure Island and the regulated area for the America's Cup 
races, thus mitigating the concerns brought forward by commercial 
vessel operators.
    The Coast Guard will enforce the safety zone and no loitering area 
during the scheduled America's Cup races in 2013. The safety zone will 
encompass the navigable waters of the San Francisco Bay within a shape 
bounded by the following coordinates: 37[deg]49[min]41[sec] N, 
122[deg]24[min]17[sec] W; 37[deg]49[min]41[sec] N, 
122[deg]24[min]07[sec] W; 37[deg]49[min]26[sec] N, 
122[deg]23[min]51[sec] W; 37[deg]49[min]17[sec] N, 
122[deg]23[min]51[sec] W; thence back to the point of origin (NAD 83) 
and the no loitering area will encompass the navigable waters of the 
San Francisco Bay within the a shape bounded by the following 
coordinates: 37[deg]49[min]55[sec] N, 122[deg]24[min]33[sec] W; 
37[deg]50[min]00[sec] N, 122[deg]23[min]47[sec] W; 
37[deg]50[min]00[sec] N, 122[deg]23[min]00[sec] W; 
37[deg]48[min]59[sec] N, 122[deg]22[min]19[sec] W; 
37[deg]48[min]40[sec] N, 122[deg]22[min]40[sec] W; 
37[deg]48[min]40[sec] N, 122[deg]23[min]10[sec] W; thence back to the 
point of origin (NAD 83). At the conclusion of the scheduled races the 
safety and no loitering area shall terminate.
    The effect of the safety zone and no loitering area will be to 
provide a safety buffer to protect persons and vessels from oncoming 
America's Cup racing vessels and to create a safe and predictable 
transit area for mariners operating in close proximity to the America's 
Cup regulated area. At the conclusion of the scheduled races, the 
safety zone and no loitering area shall terminate. Except for persons 
or vessels authorized by the Coast Guard Patrol Commander, no person or 
vessel may enter or remain in safety zone. The no loitering area is 
open to all traffic for transitory purposes only.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on numerous 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

[[Page 40398]]

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.
    We expect the economic impact of this rule does not rise to the 
level of necessitating a full Regulatory Evaluation. The safety zone 
and no loitering area are limited in duration, and are limited to a 
narrowly tailored geographic area. In addition, although this rule 
restricts access to a small section of the waters encompassed by the 
safety zone, the effect of this rule will not be significant because 
the local waterway users will have access to the no loitering area 
during the event. The entities most likely to be affected are 
waterfront facilities, commercial vessels, and pleasure craft engaged 
in recreational activities.

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 may affect owners and operators of waterfront facilities, 
commercial vessels, and pleasure craft engaged in recreational 
activities and sightseeing. This safety zone and no loitering area 
would not have a significant economic impact on a substantial number of 
small entities for the following reasons. This safety zone and no 
loitering area would be activated, and thus subject to enforcement, for 
a limited duration. When the safety zone and no loitering area are 
activated, vessel traffic could pass safely around the safety zone and 
through the no loitering area. The maritime public will be advised in 
advance of this safety zone and no loitering area via Broadcast Notice 
to Mariners.

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 an 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 a safety zone of limited size and 
duration. This rule is categorically excluded from further review under 
paragraph 34(g) and 35(b) of Figure 2-1 of the Commandant Instruction. 
An environmental analysis checklist supporting this determination and a

[[Page 40399]]

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, and 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; 50 U.S.C. 
191, 195; 33 CFR 1.05-1(g), 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. Add temporary Sec.  165-T11-579 to read as follows:


Sec.  165-T11-579  Safety zone; America's Cup Safety Zone and No 
Loitering Area, San Francisco, CA.

    (a) Location. This temporary safety zone is established for the 
navigable waters of the San Francisco Bay near Treasure Island, CA as 
depicted in National Oceanic and Atmospheric Administration (NOAA) 
Chart 18650. The safety zone will encompass the navigable waters of the 
San Francisco Bay within a shape bounded by the following coordinates: 
37[deg]49'41'' N, 122[deg]24'17'' W; 37[deg]49'41'' N, 122[deg]24'07'' 
W; 37[deg]49'26'' N, 122[deg]23'51'' W; 37[deg]49'17'' N, 
122[deg]23'51'' W; thence back to the point of origin (NAD 83). The no 
loitering area will encompass the navigable waters of the San Francisco 
Bay within a shape bounded by the following coordinates: 37[deg]49'55'' 
N, 122[deg]24'33'' W; 37[deg]50'00'' N, 122[deg]23'47'' W; 
37[deg]50'00'' N, 122[deg]23'00'' W; 37[deg]48'59'' N, 122[deg]22'19'' 
W; 37[deg]48'40'' N, 122[deg]22'40'' W; 37[deg]48'40'' N, 
122[deg]23'10'' W; thence back to the point of origin (NAD 83).
    (b) Enforcement Period. The zone described in paragraph (a) of this 
section will be effective from July 4, 2013, to September 22, 2013 and 
will be enforced during all scheduled America's Cup races in 2013. The 
Captain of the Port San Francisco (COTP) will notify the maritime 
community of periods during which this zone will be enforced via 
Broadcast Notice to Mariners in accordance with 33 CFR 165.7 or via 
actual notice on-scene.
    (c) Regulations. (1) The safety zone is closed to all persons and 
vessels.
    (2) The no loitering area is open to all persons and vessels for 
transitory use only.
    (3) Persons and vessels operating within the no loitering area may 
not anchor or otherwise loiter.
    (4) Vessel operators desiring to anchor or otherwise loiter within 
the no loitering area must contact Sector San Francisco Vessel Traffic 
Service at (415) 556-2760 or VHF Channel 14 to obtain permission.
    (5) All persons and vessels transiting through or operating within 
the no loitering area must comply with all directions given to them by 
the COTP or a designated representative.
    (6) The public can contact Sector San Francisco Bay at (415) 399-
3530 to obtain information concerning enforcement of this rule.
    (d) Enforcement. All persons and vessels must comply with the 
instructions of the COTP or the designated on-scene patrol personnel. 
Patrol personnel comprise commissioned, warrant, and petty officers of 
the Coast Guard onboard Coast Guard, Coast Guard Auxiliary, local, 
state, and federal law enforcement vessels. The U.S. Coast Guard may be 
assisted in the patrol and enforcement of the safety zone by local law 
enforcement as necessary. Upon being hailed by U.S. Coast Guard patrol 
personnel by siren, radio, flashing light, or other means, the operator 
of a vessel must proceed as directed.

    Dated: June 19, 2013.
Gregory G. Stump,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2013-16164 Filed 7-3-13; 8:45 am]
BILLING CODE 9110-04-P