[Federal Register Volume 78, Number 241 (Monday, December 16, 2013)]
[Rules and Regulations]
[Pages 76060-76061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29878]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334


Pacific Ocean off the Pacific Missile Range Facility at Barking 
Sands, Island of Kauai, Hawaii; Danger Zone.

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

ACTION: Final rule.

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SUMMARY: The Corps of Engineers is amending its regulations for the 
danger zone in waters of the Pacific Ocean off the Pacific Missile 
Range Facility at Barking Sands, Island of Kauai, Hawaii. The U.S. Navy 
conducts weapon systems testing and other military testing and training 
activities at the Pacific Missile Range Facility. The amendment expands 
the boundaries of the existing danger zone to include an area necessary 
to protect the public from potential hazards associated with weapon 
systems testing, other military testing and training activities, and 
increased threat conditions. Similar to the original danger zone, the 
expanded danger zone prohibits any activity by the public within the 
danger zone during range operations, weapon systems testing, other 
military testing and training activities, increases in force protection 
and other mission-essential evolutions without first obtaining 
permission from the Commanding Officer, Pacific Missile Range Facility 
to ensure public safety and/or installation good order. The expanded 
danger zone extends along approximately seven miles of shoreline 
adjacent to the Pacific Missile Range Facility, with its seaward extent 
ranging between 2.96 and 4.16 nautical miles offshore. Only the 
portions of the danger zone necessary to safely conduct range 
operations will be activated.

DATES: Effective date: January 15, 2014.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, 
Operations and Regulatory Community of Practice, Washington, DC at 202-
761-4922, or Ms. Susan Meyer, Corps of Engineers, Honolulu District, 
Regulatory Branch at 808-835-4599 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    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 of 
Engineers is amending the regulations at 33 CFR 334.1390 by expanding 
the boundaries of the existing permanent danger zone in the waters of 
the Pacific Ocean off the Pacific Missile Range Facility at Barking 
Sands, Island of Kauai, Hawaii.
    The proposed rule was published in the July 1, 2013 issue of the 
Federal Register (78 FR 39198; docket number COE-2013-0007). Comments 
and statements were received from nine commenters in response to the 
Federal Register notice and the Corps of Engineers local Public Notice. 
The majority of the commenters opposed the expansion of the existing 
danger zone based on concerns that public access to the beach fronting 
the Pacific Missile Range Facility and the off-shore waters used by 
waterborne recreationalists, such as surfers, boaters, and fishermen, 
would be further restricted as a result of the amended danger zone.
    The expansion of the danger zone boundaries will not increase the 
frequency with which the danger zone is activated for public safety and 
military security during range operations, weapon systems testing, 
other military testing and training activities, increases in force 
protection, and other mission-essential evolutions. Residents and 
visitors who typically use these waters off Pacific Missile Range 
Facility should not see any change in practice; the danger zone will 
continue to be activated only in limited circumstances and on a 
temporary basis. The intent of the danger zone is to ensure public 
access is controlled during the infrequent times of increased force 
protection, range operations, weapon systems training, and other 
military testing and training activities to minimize the potential for 
injury to individuals and property.
    In addition, the State of Hawaii, Coastal Zone Management Program 
commented that the proposed federal action to amend the danger zone is 
subject to federal consistency review under the Coastal Zone Management 
Act of 1972 and therefore, requires the U.S. Navy to obtain concurrence 
from the state that the federal activity is consistent with the 
policies of the Hawaii Coastal Zone Management Program.
    The U.S. Navy prepared a federal consistency determination for the 
proposed federal action and coordinated the document with the State of 
Hawaii Coastal Zone Management Program. In a letter dated September 13, 
2013, the Hawaii Coastal Zone Management Program office concurred with 
the U.S. Navy's consistency determination, indicating the proposed 
activity is consistent to the maximum extent practicable with the 
enforceable policies of the Hawaii Coastal Zone Management Program.

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 Corps determined

[[Page 76061]]

that the amendment of this danger zone has practically no economic 
impact on the public, no anticipated navigational hazard, or 
interference with existing waterway traffic. This final rule will have 
no 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 this 
amendment to the regulation will not have a significant impact to the 
quality of the human environment and, therefore, preparation of an 
environmental impact statement is not required. An environmental 
assessment (EA) was prepared after the public notice period closed and 
all comments received from the public were considered. The 
environmental assessment may be viewed 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. The Corps has 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.

    For the reasons set out 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.  334.1390 to read as follows:


Sec.  334.1390  Pacific Ocean off the Pacific Missile Range Facility at 
Barking Sands, Island of Kauai, Hawaii; danger zone.

    (a) The danger zone. All navigable waters within an area beginning 
at a point on the shore at latitude 22[deg]04'13.65'' N, longitude 
159[deg]46'30.76'' W; and continue south along the shoreline to 
latitude 21[deg]58'42.77'' N, and longitude 159[deg]45'26.35'' W. 
Thence extending southwest to latitude 21[deg]56'6.00'' N, and 
longitude 159[deg]46'55.91'' W extending northwest to latitude 
21[deg]58'59.81'' N and longitude 159[deg]50'51.42'' W, continuing 
north to latitude 22[deg]02'28.09'' N, and longitude 159[deg]51'28.15'' 
W, and continuing northeast to latitude 22[deg]06' 30.71'' N, longitude 
159[deg]49'20.43'' W; and thence to point of beginning. All coordinates 
reference 1983 North American Datum (NAD 83).
    (b) The regulations. (1) Dredging, dragging, seining, and other 
similar operations within the danger zone are prohibited.
    (2) All persons, boats, vessels, or other craft are prohibited from 
entering, transiting, or remaining within the danger zone during range 
operations, test and training activities, or increases in force 
protection that pose a hazard to the general public, as determined by 
the enforcing agency. The enforcing agency's determination of the 
necessity of closing the danger zone due to increases in force 
protection will be based on the Department of Defense Force Protection 
Condition (FPCON) System. From the lowest security level to the 
highest, FPCON levels are titled Normal, Alpha, Bravo, Charlie and 
Delta.
    (3) Closure of the danger zone will be indicated by Notice to 
Mariners, the presence of Pacific Missile Range Facility range boats, 
beach markings including beach signs along the north and south beach 
borders alerting shoreline foot traffic, security patrols, and radio 
transmissions on common ocean frequencies to include Marine band 
channel 6 (156.300 Mhz), Marine band channel 16 (156.800 Mhz), and CB 
channel 22. The enforcing agency will post the danger zone closure 
schedule on its official Navy Web site, http://www.cnic.navy.mil/PMRF/, 
and Facebook page, http://www.facebook.com/PacificMissileRangeFacility. 
The danger zone closure schedule may also be obtained by calling the 
following phone numbers: 808-335-4301, 808-335-4388, and 808-335-4523.
    (4) Consistent with paragraph (b)(2) of this section, the enforcing 
agency is authorized to prohibit access into the danger zone by anyone, 
and all willful violations of the enforcing agency's prohibitions are 
punishable under 33 U.S.C. 3.
    (c) The enforcing agency. The regulations in this section shall be 
enforced by the Commanding Officer, Pacific Missile Range Facility, 
Hawaii and such agencies or persons as he or she may designate.

    Dated: December 11, 2013.
James R. Hannon,
Chief, Operations and Regulatory Directorate of Civil Works.
[FR Doc. 2013-29878 Filed 12-13-13; 8:45 am]
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