[Federal Register Volume 69, Number 145 (Thursday, July 29, 2004)]
[Proposed Rules]
[Pages 45298-45300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16923]



[[Page 45298]]

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DEPARTMENT OF DEFENSE

Department of the Army; Corps of Engineers

33 CFR Part 334

RIN 0710-AA57


United States Marine Corps Restricted Area and Danger Zone, 
Brickyard Creek and Tributaries, and the Broad River, Marine Corps Air 
Station, Beaufort, SC

AGENCY: United States Army Corps of Engineers, DoD.

ACTION: Notice of Proposed Rulemaking and request for comments.

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SUMMARY: The Corps of Engineers is proposing regulations to establish a 
restricted area and one danger zone in Brickyard Creek (including a 
portion of the Atlantic Intracoastal Waterway), Mulligan Creek, 
Albergottie Creek and Salt Creek in the vicinity of the Marine Corps 
Air Station (MCAS) in Beaufort, South Carolina. The MCAS restricted 
area will contain six sections that are contiguous to Brickyard, 
Albergottie and Salt Creeks, and two sections that are located on the 
northern border of the MCAS that encompasses Mulligan Creek. In 
addition, the proposed regulations will establish a restricted area in 
the Broad River in the vicinity of Laurel Bay Military Family Housing 
Area, which is associated with the Marine Corps Air Station. The 
purpose of these regulations is to provide effective security in the 
vicinity of the Marine Corps Air Station and the Laurel Bay Military 
Family Housing Area and to protect the public from the hazards of small 
arms fire within the Danger Zone.

DATES: Comments must be received on or before August 30, 2004.

ADDRESSES: Send comments to U. S. Army Corps of Engineers, Attn: CECW-O 
441 G Street, NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. Frank Torbett, Headquarters, U.S 
Army Corps of Engineers, Washington, DC, at (202) 761-7610, or Mr. Dean 
Herndon, Corps of Engineers, Charleston District, at (843) 329-8044.

SUPPLEMENTARY INFORMATION: Pursuant to its authorities in section 7 of 
the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and 
chapter XIX, of the Army Appropriations Act of 1919 (40 Stat 892; 33 
U.S.C. 3) the Corps proposes to amend the restricted area regulations 
at 33 CFR 334 by adding Section 334.475, which would establish a 
restricted area (including eight sections) and one danger zone in the 
vicinity of the Marine Corps Air Station and one restricted area in the 
vicinity of the Laurel Bay Military Family Housing Area in Beaufort, 
South Carolina. The sections of the restricted area are described in 
detail in the regulation below and identified as (a)(1) through (a)(9). 
The proposed danger zone will encompass an area to be used as a firing 
range for small arms and is listed as (a)(10). The public currently has 
unrestricted access to navigable waters adjacent to the Marine Corps 
Air Station and the Laurel Bay Military Family Housing Area. The 
Commander, Marine Corps Air Bases, Eastern Area is seeking 
authorization from the Corps of Engineers to establish restricted areas 
in waters of the United States adjacent to the Marine Corps Air Station 
and Laurel Bay Military Family Housing Area in Beaufort, South 
Carolina. The District Engineer's preliminary review indicates that 
this request is not contrary to the public interest.

Procedural Requirements

a. Review Under Executive Order 12866

    This proposed rule is issued with respect to a military function of 
the Defense Department and the provisions of Executive Order 12866 do 
not apply.

b. Review Under the Regulatory Flexibility Act

    These proposed rules have been reviewed under the Regulatory 
Flexibility Act (Pub. L. 96-354), which requires the preparation of a 
regulatory flexibility analysis for any regulation that will have a 
significant economic impact on a substantial number of small entities 
(i.e., small businesses and small Governments). The Corps expects that 
the economic impact of the establishment of this restricted area would 
have practically no impact on the public, no anticipated navigational 
hazard or interference with existing waterway traffic and accordingly, 
certifies that this proposal if adopted, will have no significant 
economic impact on small entities.

c. Review Under the National Environmental Policy Act

    An environmental assessment has been prepared for this action. We 
have concluded, based on the minor nature of the proposed additional 
restricted area regulations, that this action, if adopted, will not 
have a significant impact to the quality of the human environment, and 
preparation of an environmental impact statement is not required. The 
environmental assessment may be reviewed at the District office listed 
at the end of FOR FURTHER INFORMATION CONTACT, above.

d. Unfunded Mandates Act

    This proposed rule does not impose an enforceable duty among the 
private sector and, therefore, is not a Federal private sector mandate 
and is not subject to the requirements of section 202 or 205 of the 
Unfunded Mandates Act. We have also found under section 203 of the Act, 
that small Governments will not be significantly and uniquely affected 
by this rulemaking.

List of Subjects in 33 CFR Part 334

    Danger zones, Marine safety, Restricted areas, Waterways.

    For the reasons set out in the preamble, the Corps of Engineers 
proposes to amend 33 CFR part 334 as follows:

PART 334--DANGER ZONES AND RESTRICTED AREA REGULATIONS

    1. The authority citation for part 334 continues to read as 
follows:

    Authority: 40 Stat. 266; (33 U.S.C. 1) and 40 Stat. 892; (33 
U.S.C. 3).

    2. Section 334.475 would be added to read as follows:


Sec.  334.475  Brickyard Creek and tributaries and the Broad River at 
Beaufort, SC.

    (a) The areas: (1) That section of the Atlantic Intracoastal 
Waterway (AIWW), beginning at the confluence of the AIWW and 
Albergottie Creek, being that point on the west side of the AIWW 
navigational channel at latitude (lat) 32.457226[deg], longitude (long) 
80.687770[deg], thence continuing in a northerly direction along the 
western channel edge of the AIWW to lat. 32.458580[deg], long. 
80.689181[deg], thence to lat. 32.460413[deg], long. 80.689228[deg], 
thence to lat. 32.461459[deg], long. 80.689418[deg], thence to lat. 
32.464015[deg], long. 80.690294[deg], thence to lat. 32.470255[deg], 
long. 80.690965[deg], thence to lat. 32.471309[deg], long. 
80.691196[deg], thence to lat. 32.475084[deg], long. 80.692455[deg], 
thence to lat. 32.478161[deg], long. 80.691546[deg], thence to lat. 
32.479191[deg], long. 80.691486[deg], thence to lat. 32.481817[deg], 
long. 80.691939[deg], thence to lat. 32.493001[deg], long. 
80.689835[deg], thence to lat. 32.494422[deg], long. 80.688296[deg], 
thence to lat. 32.49727[deg], long. 80.69172[deg] on the east shore of 
the Marine Corps Air Station (MCAS), at its intersection with the 
Station's property boundary line, thence heading south along the 
eastern shoreline of the MCAS to a point along the northern shoreline 
of Mulligan Creek at lat. 32.48993[deg], long. 80.69836[deg], thence 
southwesterly across Mulligan

[[Page 45299]]

Creek to the shoreline of the MCAS, lat. 32.48771[deg], long. 
80.70424[deg], thence continuing along the eastern shoreline to its 
intersection with Albergottie Creek, lat. 32.45360[deg], long. 
80.70128, thence continuing along the southern shoreline of the MCAS to 
the intersection of Salt Creek with U.S. Highway 21, lat. 
32.45047[deg], long. 80.73153[deg], thence back down the southern creek 
edge of Salt and Albergottie Creeks, thence back to the starting point 
at the confluence of Albergottie Creek and the AIWW, lat. 
32.457226[deg], long. 80.687770[deg]. Note: Situated within the 
boundaries of the area described in paragraph (a)(1) of this section 
are the areas described in paragraphs (a)(2), (a)(3), (a)(4), (a)(5) 
and the danger zone described in paragraph (a)(10) of this section. 
Since additional regulations apply to these sections, they are excluded 
from the area described in paragraph (a)(1) given that they are more 
strictly regulated.
    (2) That portion of Mulligan Creek located on the southern side of 
the MCAS runway, beginning at a point on the eastern shoreline of 
Mulligan Creek at lat. 32.48993[deg], long. 80.69836[deg], thence 
southwesterly across Mulligan Creek to the shoreline of the MCAS, lat. 
32.48771[deg], long. 80.70424[deg], thence continuing in a northerly 
direction along the eastern shoreline of the MCAS, thence in a 
northeasterly direction along the southern side of the MCAS runway, 
thence back down the eastern shoreline of Mulligan Creek to its 
starting point, lat. 32.48993[deg], long. 80.69836[deg].
    (3) That area adjacent to the Atlantic Intracoastal Waterway 
(AIWW), situated within the boundaries of the area described in 
paragraph (a)(1) of this section, beginning at a point on the west side 
of the AIWW navigational channel at lat. 32.463732[deg], long. 
80.690208[deg], thence continuing in a northerly direction along the 
western channel edge of the AIWW to lat. 32.467999[deg], long. 
80.690749[deg], thence turning in a westerly direction and continuing 
to lat. 32.467834[deg], long. 80.700080[deg], on the eastern shore of 
the MCAS, thence heading in a southward direction along the shoreline 
to lat. 32.463692[deg], long. 80.698440[deg], thence turning in a 
westerly direction and returning back to the starting point on the west 
edge of the AIWW channel, lat. 32.463732[deg], long. 80.690208[deg].
    (4) That area contiguous to Albergottie Creek, situated within the 
boundaries of the area described in paragraph (a)(1) of this section, 
beginning at a point on the southern shoreline of the MCAS at lat. 
32.452376[deg], long. 80.708263[deg], thence continuing in a northerly 
direction along the shoreline, up to the shoreline adjacent to Kimes 
Avenue and back down the opposite shoreline in a southerly direction to 
a point at lat. 32.450643[deg], long. 80.715653[deg], thence turning in 
an easterly direction and returning back to the starting point at lat. 
32.452376[deg], long. 80.708263[deg].
    (5) That area contiguous to Salt Creek, situated within the 
boundaries of the area described in paragraph (a)(1) of this section, 
beginning at a point on the southern shoreline of the MCAS and the edge 
of Salt Creek at lat. 32.45194[deg], long. 80.724473[deg], thence 
continuing in a northerly direction along the shoreline of the MCAS and 
continuing on to its intersection again with Salt Creek and adjacent to 
U.S. Highway 21, thence turning and continuing along the shoreline of 
Salt Creek in an easterly direction and returning back to the starting 
point at lat. 32.45194[deg], long. 80.724473[deg].
    (6) That section of the Atlantic Intracoastal Waterway (AIWW), 
beginning at the confluence of the AIWW and Albergottie Creek, being 
that point on the west side of the AIWW navigational channel at 
latitude (lat) 32.457226[deg], longitude (long) 80.687770[deg], thence 
continuing in a northerly direction along the western channel edge of 
the AIWW to lat. 32.458580[deg], long. 80.689181[deg], thence to lat. 
32.460413[deg], long. 80.689228[deg], thence to lat. 32.461459[deg], 
long. 80.689418[deg], thence to lat. 32.464015[deg], long. 
80.690294[deg], thence to lat. 32.470255[deg], long. 80.690965[deg], 
thence to lat. 32.471309[deg], long. 80.691196[deg], thence to lat. 
32.475084[deg], long. 80.692455[deg], thence to lat. 32.478161[deg], 
long. 80.691546[deg], thence to lat. 32.479191[deg], long. 
80.691486[deg], thence to lat. 32.481817[deg], long. 80.691939[deg], 
thence to lat. 32.493001[deg], long. 80.689835[deg], thence to lat. 
32.494422[deg], long. 80.688296[deg], thence crossing the AIWW channel 
in a southeasterly direction to a point on the east side of the AIWW 
and the marsh edge of bank, lat. 32.49343[deg], long. 80.68699[deg], 
thence southward along the edge of the AIWW and the waterward marsh 
edge of Ladies Island to a point on the west shoreline of Pleasant 
Point Peninsular, lat. 32.45806[deg], long. 80.68668[deg], thence back 
across the AIWW navigational channel to the point of beginning, lat. 
32.457226[deg], long. 80.687770[deg].
    (7) That portion of Mulligan Creek, beginning at its northern mouth 
and confluence with McCalleys Creek, lat. 32.50763[deg], long. 
80.69337[deg], thence proceeding in a westerly direction along the 
northern shoreline of Mulligan Creek to its intersection with 
Perryclear Drive bridge crossing, lat. 32.50534[deg], long. 
80.69960[deg], thence back down the southern shoreline to its starting 
point at McCalleys Creek, lat. 32.50763[deg], long. 80.69337[deg].
    (8) That portion of Mulligan Creek, beginning at the Perryclear 
Drive bridge crossing, lat. 32.50534[deg], long. 80.69960[deg], thence 
proceeding in a southwesterly direction along the northern shoreline of 
Mulligan Creek to the terminus of its western tributary, thence back 
down its southern shoreline to the terminus of its eastern terminus 
located at the northern end on the MCAS runway, lat. 32.49531[deg], 
long. 80.70658[deg], thence back down the southern shoreline to its 
starting point at Perryclear Drive bridge crossing, lat. 32.50534[deg], 
long. 80.69960[deg].
    (9) (Laurel Bay Military Family Housing Area) That section of the 
Broad River, beginning on the western shoreline of Laurel Bay Military 
Family Housing Area boundary line, at lat. 32.449295[deg], long. 
80.803205[deg], thence proceeding in a northerly direction along the 
shoreline to the housing area northern boundary line at lat. 
32.471172[deg], long. 80.809795[deg], thence proceeding a distance of 
500' into the Broad River, lat. 32.471185[deg], long. 80.811440[deg], 
thence proceeding in a southerly direction and maintaining a distance 
of 500' from the shoreline to lat. 32.449222[deg], long. 
80.804825[deg], thence back towards the shoreline to the point of 
beginning at lat. 32.449295[deg], long. 80.803205[deg].
    (10) (Danger zone). That portion of Mulligan Creek located adjacent 
to the MCAS firing range and the restricted area described in paragraph 
(a)(4) of this section, beginning at a point on the western shoreline 
of Mulligan Creek at lat. 32.48771[deg], long. 80.70424[deg], thence 
northeasterly across Mulligan Creek to the opposite shoreline at lat. 
32.48993[deg], long. 80.69836[deg], thence continuing in a 
southeasterly direction to an upland island bordering the northern 
shoreline of Mulligan Creek at lat. 32.48579[deg], long. 80.69706[deg], 
thence turning in a southwesterly direction and crossing Mulligan Creek 
to a point on the eastern shoreline of the MCAS at lat. 32.48533[deg], 
long. 80.70240[deg], thence continuing along the eastern shoreline of 
the MCAS to its starting point at lat. 32.48771[deg], long. 
80.70424[deg].
    (b) The Regulation: (1) Unauthorized personnel, vessels and other 
watercraft shall not enter the restricted areas described in paragraphs 
(a)(2), (a)(3), (a)(4), (a)(5) and (a)(8) of this section at any time.
    (2) The public shall have unrestricted access and use of the waters 
described in paragraph (a)(6) of this section whenever the MCAS is in 
Force Protection Condition Normal, Alpha or

[[Page 45300]]

Bravo. Whenever the facility is in Force Protection Condition Charlie 
or Delta, personnel, vessels and other watercraft entering the 
restricted area described in paragraph (a)(6) of this section shall 
proceed at normal speed and shall under no circumstances anchor, fish, 
loiter or photograph in any way until clear of the restricted area.
    (3) The public shall have unrestricted access and use of the waters 
described in paragraphs (a)(1), (a)(7) and (a)(9) of this section 
whenever the MCAS is in Force Protection Condition Normal Alpha or 
Bravo. Whenever the facility is in Force Protection Condition Charlie 
or Delta, personnel, vessels and other watercraft are prohibited from 
entering the waters described in paragraphs (a)(1), (a)(7) and (a)(9) 
of this section, unless they first obtain an escort or other approval 
from the Commander, MCAS, Beaufort, South Carolina.
    (4) Unauthorized personnel, vessels and other watercraft shall not 
enter the danger zone described in paragraph (a)(10) of this section at 
any time.
    (5) All restricted areas and danger zones will be marked with 
suitable warning signs.
    (6) It is understood that none of the restrictions herein will 
apply to properly marked Federal vessels performing official duties.
    (7) It is further understood that unauthorized personnel will not 
take photographs from within the above described restricted areas.
    (c) Enforcement: The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commanding Officer, MCAS Beaufort, or persons or agencies as he/she may 
authorize including any Federal Agency, State, Local or County Law 
Enforcement agency, or Private Security Firm in the employment of the 
facility, so long as the entity undertaking to enforce this Restricted 
Area has the legal authority to do so under the appropriate Federal, 
State or local laws.

    Dated: June 29, 2004.
Michael B. White,
Chief, Operations, Directorate of Civil Works.
[FR Doc. 04-16923 Filed 7-28-04; 8:45 am]
BILLING CODE 3710-92-P