[Federal Register Volume 74, Number 219 (Monday, November 16, 2009)]
[Rules and Regulations]
[Pages 58846-58848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27486]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334


Marine Corps Base Hawaii, Kaneohe Bay, Island of Oahu, HI

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers is amending the regulations 
at 33 CFR 334.1380 for the existing danger zone in the vicinity of 
Kaneohe Bay, Hawaii. The amendment reflects the current operational and 
safety procedures at the Ulupau Crater Weapons Training Range and 
highlights a change in the hours that weapons firing may occur. The 
amendment also expands the boundaries of the existing danger zone. 
These regulations are necessary to protect the public from potentially 
hazardous conditions which may exist as a result from use of the areas 
by the United States Marine Corps.

DATES: Effective date: December 16, 2009.

FOR FURTHER INFORMATION CONTACT: Mr. David B. Olson, Headquarters, 
Operations and Regulatory Community of Practice, Washington, DC at 202-
761-4922 or by e-mail at [email protected], or Ms. Susan A. 
Meyer, Corps of Engineers, Honolulu District, Regulatory Branch, at 
808-438-2137 or by e-mail at [email protected].

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 is amending the danger zone regulations at

[[Page 58847]]

33 CFR 334.1380 to reflect current operational and safety procedures at 
the Ulupau Crater Weapons Training Range, Marine Corps Base Hawaii 
(MCBH), Kaneohe Bay, Island of Oahu, Hawaii and highlight a change in 
the hours that weapons firing may occur. The amendment also provides 
more detailed times, dates, and extents of restrictions. The dimensions 
of the danger zone have increased, from the original distance of 3,900 
yards from a point on Mokapu Peninsula to 3.8 nautical miles from that 
same point.
    The proposed rule was published in the August 31, 2007, issue of 
the Federal Register (72 FR 50303) with the docket number COE-2007-0027 
and approximately 23 comments were received from 13 commenters. One 
commenter said that a draft Environmental Impact Report should have 
been available for public comment at the same time as the proposed 
rule. Two other commenters requested a copy of the draft EA for review 
and comment. Another commenter requested clarification on the Corps' 
authority to amend the danger zone and promulgate regulations at 33 CFR 
part 334. One commenter objected to the expansion of the danger zone on 
the basis of potential impacts to sensitive marine wildlife and 
organisms, including existing designated wildlife protected areas. The 
same commenter requested that submerged lands surrounding the crater be 
treated with sensitivity and respect based on the view these areas are 
ceded lands belonging to the Hawaiian monarchy. Three other commenters 
stated that the coordinates for Point E of the expanded danger zone do 
not appear to be correct and one of the three commenters interpreted 
the proposed rule to amend/expand the prohibited area. Lastly, eight 
commenters expressed no objections to the proposed amendment.
    In the August 31, 2007, proposal the Corps made a preliminary 
determination that the proposed rule does not require the preparation 
of an Environmental Impact Statement, and that an environmental 
assessment would be prepared for the final rule. The regulations 
governing the National Environmental Policy Act (NEPA) do not require 
draft environmental assessments to be available for public comment. 
Federal agencies are only required to solicit public comments during 
the preparation of Environmental Impact Statements. Given the 
administrative nature of the proposed rule and the substance of the 
comments received, we have determined that an environmental assessment 
is the appropriate mechanism for complying with NEPA requirements. 
Public input on the proposed action was solicited using Federal 
Register noticing and local public noticing. Public comments received 
in response to the notices were documented and fully considered during 
final agency decision making.
    Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 
U.S.C. 1) and Chapter XIX of the Army Act of 1918 (40 Stat. 892; 33 
U.S.C. 3) grant authority to the Secretary of the Army to establish 
danger zones and to regulate navigation within them for the protection 
of life and property.
    The danger zone represents a public safety buffer beyond the 
physical boundaries of the training range to further reduce the safety 
threat to the boating public. The geographical nature of the crater 
combined with the use of man-made measures makes the crater secure from 
unintended projectiles exiting its confines, although a very slight 
possibility exists that a projectile could ricochet or otherwise be 
inadvertently fired beyond the confines of the crater. Under current 
conditions, sensitive wildlife areas, including designated protected 
areas, are encompassed within the existing boundaries of the danger 
zone. Since munitions are not intentionally fired into waters 
surrounding Ulupau Crater and the probability of an unintended 
projectile exiting the crater is negligible, an expanded danger zone 
will not incrementally change, modify or otherwise adversely impact 
sensitive marine species and organisms that inhabit or are supported by 
the waters and protected areas occurring within the danger zone. Marine 
resources, including endangered species, migratory shorebirds, and 
other seabirds that occupy designated protected areas will remain 
adequately protected by the MCBH under obligations of pre-existing 
agreements. For similar reasons, submerged lands will not be directly 
or indirectly adversely affected by the expanded danger zone.
    The coordinates for Point E of the danger zone were not correct in 
the proposed rule, and in the final rule we have eliminated Point E 
altogether. In the final rule the amended danger zone is defined by a 
reduced number of coordinates, from six points (Points A, B, C, D, E 
and the starting point) to four points (Points A, B, C and the starting 
point). The boundaries of the amended danger zone form a pie-shaped 
area with an arc having a 3.8 nautical-mile radius at its center point 
(Point B). When compared to the irregularly shaped area described in 
the proposed rule, this modified configuration is less problematic to 
monitor and patrol, and is less complicated for the boating public to 
interpret and chart. The reduced number of coordinates and minor 
changes to the configuration simplify the boundaries of the danger 
zone, but do not appreciably change the overall size of the amended 
danger zone as it was depicted in the proposed rule. The amended danger 
zone is defined by three points extending seaward a distance of 3.8 
nautical miles between radial lines bearing 357.1[deg] true and 
124.9[deg] true, respectively, from a starting point on Mokapu 
Peninsula at latitude 21[deg] 27' 11.84'' N, longitude 157[deg] 43' 
53.83'' W. The three seaward points are as follows:

Point A: Latitude 21[deg]30'59.66'' N, Longitude 157[deg]44'05.97'' W
Point B: Latitude 21[deg]29'16.58'' N, Longitude 157[deg]40'30.19'' W
Point C: Latitude 21[deg]25'01.79'' N, Longitude 157[deg]40'33.70'' W
    The prohibited area is defined as a 500-yard wide zone within the 
waters of Kaneohe Bay contiguous with the shoreline of the MCBH, which 
remains off limits to the public for military security and public 
safety. While a portion of the amended danger zone overlaps the 
existing prohibited area, the 500-yard wide prohibited area will not 
expand or otherwise change as a result of this action.

Procedural Requirements

a. Review Under Executive Order 12866

    This final 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

    This final rule has 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 economic impact of the amendment 
to this danger zone does not have an effect on the public, does not 
result in a navigational hazard, or interfere with existing waterway 
traffic. Therefore, this final rule does not have a significant 
economic impact on small entities.

c. Review Under the National Environmental Policy Act

    Due to the administrative nature of this action and because there 
is no intended change in the use of the area, the Corps determined the 
amendment does not have a significant impact on

[[Page 58848]]

the quality of the human environment and, therefore, preparation of an 
environmental impact statement is not required. An environmental 
assessment was prepared after the public notice period is closed and 
considered all comments received on the public notice. The 
environmental assessment may be reviewed at the District office listed 
at the end of the FOR FURTHER INFORMATION CONTACT section, above.

d. Unfunded Mandates Act

    This final rule does not impose an enforceable duty among the 
private sector and, therefore, it is not a Federal private sector 
mandate and it is not subject to the requirements of either Section 202 
or Section 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, Navigation (water), Restricted areas, 
Waterways.


0
For the reasons stated in the preamble, the Corps amends 33 CFR part 
334 as follows:

PART 334--DANGER ZONE AND RESTRICTED AREA REGULATIONS

0
1. The authority citation for 33 CFR 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).


0
2. Revise Sec.  334.1380 to read as follows:


Sec.  334.1380  Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of 
Oahu, Hawaii--Ulupau Crater Weapons Training Range; danger zone.

    (a) The danger zone. The area within a sector extending seaward a 
distance of 3.8 nautical miles between radial lines bearing 357.1[deg] 
true and 124.9[deg] true, respectively, from a starting point on Mokapu 
Peninsula at latitude 21[deg]27'11.84'' N, longitude 157[deg]43'53.83'' 
W, and overlapping the existing 500-yard wide prohibited area. The 
danger zone is defined as a pie-shaped area bounded by the landward 
starting point on Mokapu Peninsula and the three seaward points forming 
an arc with a 3.8 nautical-mile radius at its center (Point B) with a 
radial line bearing 56.9[deg] true. The three seaward points have the 
following coordinates:

Point A: Latitude 21[deg]30'59.66'' N, Longitude 157[deg]44'05.97'' W
Point B: Latitude 21[deg]29'16.58'' N, Longitude 157[deg]40'30.19'' W
Point C: Latitude 21[deg]25'01.79'' N, Longitude 157[deg]40'33.70'' W
    (b) The regulations. (1) Weapons firing at the Ulupau Crater 
Weapons Training Range may occur at any time between 6 a.m. and 11 
p.m., Monday through Sunday. Specific dates and hours for weapons 
firing, along with information regarding onshore warning signals, will 
be promulgated by the U.S. Coast Guard's Local Notice to Mariners. 
Information on weapons firing schedules may also be obtained by calling 
the MCBH Range Manager, AC/S G-3 (telephone number 808-257-8816/17).
    (2) Whenever live firing is in progress during daylight hours, two 
large red triangular warning pennants will be flown at each of two 
highly visible and widely separated locations on the shore at Ulupau 
Crater.
    (3) Whenever any weapons firing is scheduled and in progress during 
periods of darkness, flashing red warning beacons will be displayed on 
the shore at Ulupau Crater.
    (4) Boaters will have complete access to the danger zone whenever 
there is no weapons firing scheduled, which will be indicated by the 
absence of any warning flags, pennants, or beacons displayed ashore.
    (5) The danger zone is not considered safe for boaters whenever 
weapons firing is in progress. Boaters shall expeditiously vacate the 
danger zone at best speed and by the most direct route whenever weapons 
firing is scheduled. Passage of vessels through the danger zone when 
weapons firing is in progress will be permitted, but boaters shall 
proceed directly through the area at best speed. Weapons firing will be 
suspended as long as there is a vessel in the danger zone. Whenever a 
boater disregards the publicized warning signals that hazardous weapons 
firing is scheduled, the boater will be personally requested to 
expeditiously vacate the danger zone by MCBH Kaneohe Bay military 
personnel utilizing by hailing the vessel on VHF channel 16 or 
contacting directly by U.S. Navy surface craft.
    (6) Observation posts will be manned whenever any weapons firing is 
scheduled and in progress. Visibility will be sufficient to maintain 
visual surveillance of the entire danger zone and for an additional 
distance of 5 miles in all directions whenever weapons firing is in 
progress.
    (c) The enforcing agency. The regulations shall be enforced by the 
Commanding Officer, MCB Hawaii, Kaneohe Bay and such agencies as he/she 
may designate.

    Dated: November 5, 2009.
Michael G. Ensch,
Chief, Operations, Directorate of Civil Works.
[FR Doc. E9-27486 Filed 11-13-09; 8:45 am]
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