[Federal Register Volume 79, Number 118 (Thursday, June 19, 2014)]
[Rules and Regulations]
[Pages 35049-35050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14333]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334


York River off the Naval Weapons Station Yorktown-Cheatham Annex, 
Virginia; Danger Zone

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

ACTION: Final rule.

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SUMMARY: The Corps of Engineers is establishing a danger zone in the 
waters of the York River off Cheatham Annex in York County, Virginia. 
The danger zone is necessary to protect the public from hazards 
associated with the small arms fire operations.

DATES: Effective: July 21, 2014.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R (David B. 
Olson), 441 G Street NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, 
Operations and Regulatory Community of Practice, Washington, DC at 202-
761-4922, or Mr. Robert Berg, Corps of Engineers, Norfolk District, 
Regulatory Branch, at 757-201-7793.

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 of Engineers is amending the regulations in 33 CFR 
Part 334 by establishing a new permanent danger zone, in the waters of 
the York River off Cheatham Annex in York County, Virginia. The 
modification to the regulations is described below.
    The proposed rule was published in the September 18, 2013 issue of 
the Federal Register (76 FR 62692), and its regulations.gov docket 
number is COE-2013-0012. There were nineteen comments received in 
response to the proposed rule from the public as well as state and 
federal agencies. Many of the comments received from the public 
concerned the proposed danger zone restricting public and commercial 
use of this portion of the York River, negative impacts to commercial 
and recreational fishing and oyster harvesting, concerns about the Navy 
shooting bullets over and into the river, negative impacts to persons 
using Queens Creek, visibility of the red flags and lights indicating 
the shooting range is active, the potential for the Navy to construct 
an indoor shooting range as an alternative to the existing shooting 
range, and some questioned why the danger zone was necessary now since 
there have been no safety issues to date. Two comments received were in 
support of the proposed danger zone. The comments are addressed below.
    The Navy has been conducting live fire training at the shooting 
range on Cheatham Annex adjacent to the York River for decades. The 
Navy does not shoot out into the York River. The shooting range is 
separated from the York River by a berm which prevents rounds from 
escaping the range and going into the York River. Only experienced 
marksmen use this range and only small caliber rounds are allowed on 
this range; no large caliber or machine guns are permitted. The area 
has been marked on navigation charts as a danger zone for years. The 
danger zone will better protect the public from any potential errant 
rounds that might escape the berm separating the range from the York 
River. The danger zone does not ban persons from transiting the area, 
and the Navy monitors the danger zone using spotters and/or cameras and 
will cease firing when vessels or persons enter the danger zone. The 
Navy stated that the Department of Defense policy for the protection of 
a surface danger zone is more conservative than private sector shooting 
ranges. The Navy also stated that it has a perfect safety record with 
respect to public safety at this range.
    There were numerous comments related to commercial and recreational 
fishing uses of this portion of the York River as well as oyster 
harvesting in the danger zone. The Navy has been operating the range 
such that once persons or vessels enter the danger zone they cease 
firing until the danger zone is clear. This operation has been in place 
for years and the Navy will continue to operate the range in this same 
manner. There should be no impact to public use of this portion of the 
York River as a result of this amendment to the regulations.
    Numerous comments were received regarding issues with visibility of 
the flags and lights used to indicate the range is in use. Red flags 
are used during the daytime to alert the public to live fire activities 
while red lights are used at night. The Navy has indicated that they 
will install larger lights in order to address the visibility issue at 
night. In addition, the Navy will install a new flagpole which is 
higher and install a larger sized flag to increase its visibility 
during daylight hours.
    Numerous comments were received from users of Queens Creek, located 
just upstream of the danger zone. They were concerned this amendment to 
the regulations would impact their ability to access the York River. As 
addressed above, the danger zone will not affect persons utilizing the 
York River from Queens Creek.
    Multiple comments were made regarding an indoor shooting range as 
an alternative to the existing outdoor range and the danger zone. The 
Navy has indicated that an indoor range would take approximately 5 
years to construct and become operational. The existing range has been 
in use for decades and with little negative impact on the public use of 
the York River and its operation has resulted in no public safety 
issues. Due to the time frame required to construct another facility 
the Corps believes the existing facility with the danger zone is the 
most practicable as it allows the Navy to continue their

[[Page 35050]]

required training while ensuring public safety.
    Numerous persons questioned why the Navy was doing this now since 
the range has been in use for so long. Modifying the regulation will 
better protect citizens from potential hazards associated with the 
operation of the small arms training range on Cheatham Annex.
    The United States Coast Guard submitted recommended changes to the 
proposed regulation that would make its intent clearer. The Coast Guard 
recommended using a separate paragraph for the sentence stating that 
the Navy will not use the range when visibility is less than the 
maximum range of the weapons being used. They also recommended adding 
at the end of this sentence ``or while a vessel is within the danger 
zone'' to address the expected cease fire when vessels transit through 
the danger zone. We concur with these changes and as a result we 
modified the regulation.

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 that this regulation would have 
practically no economic impact on the public nor would it result in any 
anticipated navigational hazard or interference with existing waterway 
traffic. This regulation will have no significant economic impact on 
small entities.
    c. Review under the National Environmental Policy Act. This final 
rule will not have a significant impact to the quality of the human 
environment and, therefore, preparation of an environmental impact 
statement will not be required. An environmental assessment has been 
prepared and it may be reviewed at the district office listed at the 
end of FOR FURTHER INFORMATION CONTACT above.
    d. Unfunded Mandates Act. This final rule does not impose an 
enforceable duty on the private sector and, therefore, it is not a 
Federal private sector mandate and is not subject to the requirements 
of either Section 202 or Section 205 of the Unfunded Mandates Reform 
Act. (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501 et seq.) We have also 
found under Section 203 of the Act, that small governments will not be 
significantly or 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. Add Sec.  334.285 to read as follows:


Sec.  334.285  York River and the Naval Weapons Station Yorktown-
Cheatham Annex, Yorktown, Virginia; danger zone.

    (a) The area. The waters within an area beginning at mean high 
water on the shore at the facility located at latitude 
37[deg]17'33.10'' N, longitude 76[deg]36'19.06'' W; then northeast to a 
point in the York River at latitude 37[deg]18'36.65'' N, longitude 
76[deg]34'39.01'' W; thence south, southeast to latitude 
37[deg]17'59.37'' N, longitude 76[deg]34'13.65'' W; then southwest to a 
point on the shore located at latitude 37[deg]17'26.75'' N, longitude 
76[deg]36'14.89'' W.
    (b) The regulations. (1) Vessels and persons may transit this area 
at any time. No vessel or persons shall anchor, fish or conduct any 
waterborne activities within the danger zone established in accordance 
with this regulation any time live firing exercises are being 
conducted.
    (2) Anytime live firing is being conducted, the person or persons 
in charge shall display a red flag from a conspicuous location along 
the shore to signify the range is active and post lookouts to ensure 
the safety of all vessels passing through the area. At night, red 
lights will be displayed in lieu of flags.
    (3) No firing activities shall be conducted when the visibility is 
less than the maximum range of the weapons being used at the facility 
or while a vessel is within the danger zone.
    (4) Recreational and commercial activities may be conducted in this 
area anytime the range is inactive.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Commander, Naval Weapons Station, Yorktown, or such agencies as 
he or she may designate.

    Dated: June 13, 2014.
James R. Hannon,
Chief, Operations and Regulatory Directorate of Civil Works.
[FR Doc. 2014-14333 Filed 6-18-14; 8:45 am]
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