[Federal Register Volume 82, Number 60 (Thursday, March 30, 2017)]
[Rules and Regulations]
[Pages 15637-15641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06296]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334


Gulf of Mexico, Apalachicola Bay, East Bay, St. Andrew Bay and 
St. Andrew Sound at Tyndall Air Force Base, Florida; Restricted Areas

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

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is amending its 
regulations by revising an existing restricted area regulation and 
establishing a new restricted area along portions of the Tyndall Air 
Force Base (AFB) facility shoreline that will be activated on a 
temporary basis. The duration of temporary restricted area activations 
will be limited to those periods where it is warranted or required by 
specific and credible security threats and will be inactive at all 
other times. The restricted area will be partitioned using 23 pairs of 
coordinates to facilitate quick geographic recognition. Tyndall AFB is 
surrounded on three sides by water with approximately 129 miles of 
unprotected coastline. This includes several areas where the lack of 
security or lack of restriction on access to these areas leaves Tyndall 
AFB personnel and resources vulnerable to security threats. This 
amendment is necessary to implement an enhanced threat security plan 
for Tyndall AFB which will allow temporary activation of one or more 
portions of the restricted area as necessary to provide the appropriate 
level of security required to address the specific and credible threat 
triggering the need for activation.

DATES: Effective: May 1, 2017.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO (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. Ed Sarfert, U.S. Army Corps of Engineers, Jacksonville 
District, Regulatory Division, at 850-439-9533.

SUPPLEMENTARY INFORMATION:

Executive Summary

    External reviews of security at Tyndall AFB identified the lack of 
jurisdiction to respond to threats from the waterways as a major 
weakness. Tyndall AFB does not currently have the authority to restrict 
access to the shoreline of Tyndall AFB if needed to respond to a 
security threat. The purpose of this regulatory action is to establish 
a restricted area in the waters surrounding portions of Tyndall AFB 
that will only be activated on a temporary basis in response to 
specific and credible security threats. Additionally this amendment 
provides an administrative correction to the existing regulation at 33 
CFR 334.660.
    The Corps' authority to establish the restricted area is 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).

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 is 
amending the regulations at 33 CFR part 334 by adding Sec.  334.665 and 
revising Sec.  334.660. Adding Sec.  334.665 will establish a 
restricted area in the waters surrounding Tyndall AFB. This amendment 
will allow the Installation Commander, Tyndall AFB to temporarily 
restrict the passage of persons, watercraft, and vessels in waters 
contiguous to this facility when a specific and credible security 
threat is identified, providing greater security for personnel and 
equipment during those

[[Page 15638]]

periods. The administrative correction at 33 CFR 334.660(b)(3) will 
clarify who is responsible for enforcing the provisions of Sec.  
334.660.
    A proposed rule was published in the Federal Register on May 9, 
2013 (78 FR 27126). One hundred seventy-one comments were submitted in 
response to that proposed rule. As a result of the comments received in 
response to the May 9, 2013, proposed rule, substantial revisions were 
made to the proposed restricted area to address the concerns of the 
commenters. A revised proposed rule was published in the September 14, 
2015, issue of the Federal Register (80 FR 55052). The regulations.gov 
docket number for these proposed rules is COE-2013-0030. In response to 
the publication of the second proposed rule, forty six (46) comments 
were received. Many of the comments expressed concern about loss of use 
of waterways and beaches, particularly around Shell Island and Crooked 
Island. Many commenters also stated their belief that the restricted 
areas would not be activated temporarily in response to elevated 
security threats, but would be made permanent. Several commenters 
stated that the regulation should expire in five years. One commenter 
objected to the rule because they do not believe there is a threat.
    The Corps determined that due to the temporary nature of the 
restrictions, and the removal of the most popular areas used for 
recreational water sports from the originally proposed restricted area, 
the restricted area will have no more than minimal detrimental impact 
on the continued utilization of the overall waterway by the public. The 
impact will be further mitigated because the restrictions will be 
limited to those specific areas necessary to address security threats. 
Restrictions will only be activated when security threats are 
identified that dictate a need for the restrictions, and after the 
security threats are no longer present, the restrictions will be lifted 
to allow the public to use the waterway. Given the existing security 
environment, it is not expected that all threats will be eliminated 
within five years. In consideration of this, and since restrictions 
will be only temporarily activated due to specific and credible 
threats, resulting in no more than minimal detrimental impact on the 
continued public utilization of the overall waterway, an expiration 
provision is not warranted. The restricted area does not affect Shell 
Island, and only covers limited portions of Crooked Island.
    Many commenters expressed concern about harassment by United States 
Air Force (USAF) personnel, and the belief that federal control and 
police powers do not extend into these waters. Other commenters stated 
that Tyndall AFB was using this rule to increase its control over these 
waters and the public. Some commenters said that the United States 
Coast Guard (USCG) has authority in these waters, and that Tyndall AFB 
should rely on the USCG or local boaters to observe the area and 
provide security. One commenter stated that Tyndall AFB personnel will 
impact seagrass beds while patrolling, and should be held to the same 
standards for seagrass impacts as the public.
    The River and Harbor Act of 1917 (33 U.S.C. 1) provides the Corps 
with the authority to issue regulations that govern the use, 
administration, and navigation of the navigable waters of the United 
States that are necessary for the protection of life and property. 
United States Air Force personnel do not have authority to enforce 
federal, state or local laws on the water. This rule does not change 
that. Law enforcement actions by USAF personnel related to 
implementation of this rule will be in the form of issuance of a 
trespassing ticket if an individual violated the regulation and refused 
to leave; any further action will be referred to the USCG. Impacts to 
seagrass that might occur during patrols by USAF personnel are outside 
the scope of this rule. The purpose of this rule is to establish a 
restricted area to protect Tyndall AFB personnel and resources from 
security threats.
    Several commenters expressed concern that small businesses, 
particularly those associated with the boating industry, would be 
adversely impacted. Some commenters also stated that Executive Order 
12866 requires an economic impact statement and Office of Management 
and Budget review of the proposed rule. Another commenter stated that 
Executive Order 13422 has similar requirements and applies here as 
well.
    The Corps has complied with the requirements of the Regulatory 
Flexibility Act. As discussed below, the Corps has determined that the 
rule will not have a significant economic impact on a substantial 
number of small entities. The Corps does not anticipate any small 
entities will be significantly impacted by the rule because the 
restricted areas will only be activated based on specific local or 
national intelligence information, the geographic scope of the 
activation will be limited to providing the level of security required 
in response to specific and credible threats, and the duration of any 
activation will be limited to those periods where it is warranted by 
such threats. In addition, the removal from the proposed restricted 
area of the most popular areas for recreational water sports--Shell 
Island and portions of Crooked Island--further supports the 
determination that the rule will have no more than minimal detrimental 
impact on small entities. The provisions of Executive Orders 12866 and 
13422 do not apply because this rule is issued with respect to a 
military function of the Department of Defense (see section 3(d)(2) of 
Executive Order 12866).
    Many commenters stated that rather than create a restricted area 
over water, Tyndall AFB should enhance its security on land, using 
methods such as smaller perimeters, cameras, sensors, fencing, and 
expanded foot and vehicle patrols. Several commenters expressed 
opposition to language referencing the restrictions being necessary to 
protect the public from potentially hazardous conditions that may 
develop as a result of military use of the area.
    Tyndall AFB has approximately 129 miles of coastline, portions of 
which are difficult for security personnel to access from land and 
require a marine patrol to monitor. While activation of temporary 
restrictions will not create significant costs for Tyndall AFB, the 
alternative security measures suggested were found by Tyndall AFB to 
incur significant costs. Since any activation of the restricted area 
will be only temporary, and only those portions of the restricted area 
required in response to a specific and credible threat will be 
activated, the rule ensures no more than minimal impacts on the public 
use of the overall waterway. The language regarding hazardous 
conditions and military use is not part of Sec.  334.665 itself, but 
was included in the Procedural Requirements section of the notice as 
part of the Corps' description of how it reviewed the proposed rule 
under the Regulatory Flexibility Act. The term ``hazardous conditions 
and military use'' was intended only to relate to the modifications of 
the restricted area provisions in Sec.  334.660 for the existing drone 
recovery area. Since those existing restricted area provisions in Sec.  
334.660 are only being administratively modified in terms of the 
enforcement provision, we have removed the statement in the Regulatory 
Flexibility Act section referencing ``hazardous conditions and military 
use.''
    One commenter expressed concern about the restricted area extending 
500 yards from the shoreline and its effects on fishing. Another 
commenter stated that additional buoys and markers in the water would 
be unappealing and/or

[[Page 15639]]

disregarded by boaters. A commenter asked if oysters from manmade beds 
in nearshore areas of East Bay would now belong to Tyndall AFB. One 
commenter said that this rulemaking requires a consistency 
determination under the Coastal Zone Management Act.
    The restricted area will only be activated when security threats 
are identified that dictate a need for the restrictions, and after the 
security threats are no longer present, the restrictions will be lifted 
to allow the public to use the waterway, including for fishing. If 
activated, the restricted area will encompass the area up to 500 feet 
waterward of the shoreline, not 500 yards. No buoys or markers are 
authorized by this rule. This rule will not alter who may harvest 
oysters from East Bay. In a letter dated May 17, 2016, the Florida 
Department of Environmental Protection stated that the proposed rule is 
consistent with the Florida Coastal Management Program.
    Two commenters stated that the Corps should complete an 
Environmental Impact Statement (EIS) for this rule. One commenter 
stated that language in the rule about contiguous inland waterways 
could be viewed as applying to large areas of water outside of the 
restricted area, and should be changed or deleted.
    An EIS is required by the National Environmental Policy Act (NEPA) 
for certain federal actions that are determined to ``significantly 
affect the quality of the human environment.'' An EIS is not required 
if the federal agency prepares an environmental assessment and 
determines that the proposed federal action will not have a significant 
impact on the quality of the human environment. The Corps completed an 
environmental assessment for this rule and determined the rule will not 
significantly affect the quality of the human environment, and will 
have no more than minimal adverse impact on the public's use of the 
waterway. The rule clearly describes the waters that are part of the 
restricted area, including providing coordinates and measurements. The 
language used in the rule states the restricted area ``shall encompass 
all navigable waters of the United States as defined at 33 CFR part 329 
within the area described and includes all contiguous inland navigable 
waters which lie within the land boundaries of Tyndall Air Force Base 
(AFB)''. The restricted area is limited to the navigable waters 
identified in the rule text, and does not extend to areas of navigable 
waters outside of the designated area.
    Some commenters stated that the procedures for notifying the public 
about restricted area activation would not be effective, and that there 
was no procedure for early deactivation. One commenter said that one 
portion of the restricted area should be renamed to correspond with the 
United States Geological Survey Geographic Names Information System.
    In response to these comments received and at the Corps' request, 
Tyndall AFB agreed to expand its restricted area notification 
procedures for both activation and early deactivation, and modify the 
name of the pair of coordinates originally entitled Little Cedar Lake 
to Little Cedar Bayou for clarity and consistency.

Procedural Requirements

    a. Review Under Executive Orders 12866 and 13771. The rule is 
issued with respect to military and national security functions of the 
Department of Defense and the provisions of Executive Orders 12866 and 
13771 do not apply.
    b. Review Under the Regulatory Flexibility Act. This rule has been 
reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The 
Regulatory Flexibility Act generally requires an agency to prepare a 
regulatory flexibility analysis of any rule subject to the notice-and-
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities (i.e., small businesses and small governments). Tyndall AFB 
has approximately 129 miles of unprotected shoreline, including several 
areas where the lack of security or restriction on access leaves 
Tyndall AFB personnel and resources vulnerable to security threats. 
Therefore, the restricted area regulation is necessary to implement an 
enhanced threat security plan for Tyndall AFB which will allow for the 
temporary activation of one or more portions of the restricted area as 
necessary to provide the appropriate level of security required to 
address the specific and credible threats that are identified by 
Tyndall AFB. When the restricted area is activated, small entities can 
continue to use the navigable waters surrounding Tyndall AFB that are 
outside of the restricted area. After considering the economic impacts 
of this restricted area regulation on small entities, I certify that 
this action will not have a significant impact on a substantial number 
of small entities.
    c. Review Under the National Environmental Policy Act. This 
regulation 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. It may be reviewed at the district office listed at the 
end of FOR FURTHER INFORMATION CONTACT, above.
    d. Unfunded Mandates Act. This regulation 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 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 regulation.

List of Subjects in 33 CFR Part 334

    Danger zones, 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 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.  334.660(b)(3) to read as follows:


Sec.  334.660   Gulf of Mexico and Apalachicola Bay south of 
Apalachicola, Fla., Drone Recovery Area, Tyndall Air Force Base, Fla.

* * * * *
    (b) * * *
    (3) The federal regulations in this section shall be enforced by 
the Installation Commander, Tyndall Air Force Base, Florida, and such 
other agencies as he/she may designate.

0
3. Add Sec.  334.665 to read as follows:


Sec.  334.665   East Bay, St. Andrew Bay and St. Andrew Sound, enhanced 
threat restricted area, Tyndall Air Force Base, Florida.

    (a) The area. (1) The coordinates provided herein are 
approximations obtained using a commercial mapping program which 
utilizes simple cylindrical projection with a WGS84 datum for its 
imagery base and imagery dated February 15 and May 3, 2014.
    (2) Each portion of the temporary restricted area described in 
paragraphs (a)(4)(i) through (xxiii) of this section shall encompass 
all navigable waters of the United States as defined at 33 CFR part 329 
within the area described and includes all contiguous inland navigable 
waters which lie within the land boundaries of Tyndall Air Force Base 
(AFB).

[[Page 15640]]

    (3) Because of the dynamic nature of these geographic features near 
barrier islands, the coordinate points provided may not reflect the 
current situation regarding the location of a point at the mean high 
water line or 500 feet waterward of the mean high water line. Even if 
the landform has shifted through erosion or accretion, the intent of 
the area description will be enforced from the existing point at the 
mean high water line that is closest to the shoreline point provided 
herein out to a point located 500 feet waterward of the mean high water 
line.
    (4) The restricted area will be partitioned using 23 pairs of 
coordinates to facilitate quick geographic recognition. The first point 
in each pair of coordinates is located on the shoreline, and the second 
point is a point 500 feet waterward of the shoreline. From the first 
point in each pair of coordinates, a line meanders irregularly 
following the shoreline and connects to the first point in the next 
pair of coordinates. From the second point in each pair of coordinates, 
a line beginning 500 feet waterward of the shoreline meanders 
irregularly following the shoreline at a distance of 500 feet waterward 
of the shoreline and connects to the second point in the next pair of 
coordinates. The restricted area shall encompass all navigable waters 
of the United States as defined at 33 CFR part 329 within the area 
bounded by lines connecting each of the following pairs of coordinates:
    (i) Farmdale Bayou: 30[deg]1.156' N., 85[deg]26.915' W. to 
30[deg]1.238' N., 85[deg]26.915' W.
    (ii) Baker Bayou: 30[deg]1.325' N., 85[deg]29.008' W. to 
30[deg]1.402' N., 85[deg]28.977' W.
    (iii) Blind Alligator Bayou: 30[deg]2.094' N., 85[deg]29.933' W. to 
30[deg]2.151' N., 85[deg]29.864' W.
    (iv) Little Oyster Bay Point: 30[deg]3.071' N., 85[deg]30.629' W. 
to 30[deg]3.133' N., 85[deg]30.568' W.
    (v) Goose Point South: 30[deg]3.764' N., 85[deg]31.874' W. to 
30[deg]3.719' N., 85[deg]31.795' W.
    (vi) Goose Point North: 30[deg]4.599' N., 85[deg]31.577' W. to 
30[deg]4.650' N., 85[deg]31.503' W.
    (vii) Little Cedar Bayou: 30[deg]4.974' N., 85[deg]33.476' W. to 
30[deg]5.024' N., 85[deg]33.401' W.
    (viii) Chatters on Bayou: 30[deg]5.729' N., 85[deg]34.632' W. to 
30[deg]5.811' N., 85[deg]34.625' W.
    (ix) Fred Bayou: 30[deg]5.992' N., 85[deg]35.296' W. to 
30[deg]6.071' N., 85[deg]35.325' W.
    (x) Pearl Bayou: 30[deg]6.039' N., 85[deg]36.651' W. to 
30[deg]6.043' N., 85[deg]36.557' W.
    (xi) Military Point: 30[deg]7.394' N., 85[deg]37.153' W. to 
30[deg]7.459' N., 85[deg]37.096' W.
    (xii) Freshwater Bayou: 30[deg]7.425' N., 85[deg]38.655' W. to 
30[deg]7.473' N., 85[deg]38.578' W.
    (xiii) Smack Bayou: 30[deg]7.826' N., 85[deg]39.654' W. to 
30[deg]7.838' N., 85[deg]39.560' W.
    (xiv) Redfish Point: 30[deg]8.521' N., 85[deg]40.147' W. to 
30[deg]8.598' N., 85[deg]40.113' W.
    (xv) Davis Point: 30[deg]7.348' N., 85[deg]41.224' W. to 
30[deg]7.364' N., 85[deg]41.317' W.
    (xvi) Tyndall Marina: 30[deg]5.827' N., 85[deg]39.125' W. to 
30[deg]5.762' N., 85[deg]39.184' W.
    (xvii) Heritage Bayou: 30[deg]3.683' N., 85[deg]35.823' W. to 
30[deg]3.743' N., 85[deg]35.887' W.
    (xviii) NCO Beach North: 30[deg]4.209' N., 85[deg]37.430' W. to 
30[deg]4.272' N., 85[deg]37.368' W. The restricted Area will end on the 
west side of the land bridge that extends into Shell Island. The 
Restricted Area resumes on the east side of the land bridge that 
extends into St. Andrew Sound.
    (xix) St. Andrew Sound west: 30[deg]1.327' N., 85[deg]33.756' W. to 
30[deg]1.377' N., 85[deg]33.681' W.
    (xx) St. Andrew Sound northwest: 30[deg]1.921' N., 85[deg]33.244' 
W. to 30[deg]1.869' N., 85[deg]33.317' W.
    (xxi) St. Andrew Sound northeast: 30[deg]0.514' N., 85[deg]31.558' 
W. to 30[deg]0.452' N., 85[deg]31.619' W.
    (xxii) Wild Goose Lagoon: 29[deg]59.395' N., 85[deg]30.178' W. to 
29[deg]59.319' N., 85[deg]30.216' W.
    (xxiii) Crooked Island North: 29[deg]59.003' N., 85[deg]30.396' W. 
to 29[deg]59.082' N., 85[deg]30.371' W.
    (b) The regulations. (1) Unless one or more portions of the 
restricted area identified in paragraphs (a)(4)(i) through (xxiii) of 
this section is activated, all persons, vessels and other craft are 
permitted access to all of the navigable waters described in paragraph 
(a) of this section.
    (2) During times when the restricted area defined in paragraphs 
(a)(4)(i) through (xxiii) of this section is not active, U.S. Air Force 
boat patrols may operate in the waters adjacent to Tyndall AFB's 
shoreline to observe the shoreline in order to identify any threats to 
the installation or personnel. U.S. Air Force personnel will not have 
any authority to enforce federal, state, or local laws on the water.
    (3) Due to the nature of security threats, restricted area 
activation may occur with little advance notice. Activation will be 
based on local or national intelligence information related to threats 
against military installations and/or resources common to Tyndall AFB 
in concert with evaluations conducted by the Tyndall AFB Threat Working 
Group and upon direction of the Installation Commander, Tyndall AFB. 
The Installation Commander activates only those portions of the 
restricted area identified in paragraphs (a)(4)(i) through (xxiii) of 
this section that are necessary to provide the level of security 
required in response to the specific and credible threat(s) triggering 
the activation. The duration of activation for any portion(s) of the 
restricted area defined in paragraph (a) of this section, singularly or 
in combination, will be limited to those periods where it is warranted 
or required by security threats. Activated portions of the restricted 
area will be reevaluated every 48 hours to determine if the threat(s) 
triggering the activation or related threats warrant continued 
activation. The activated portion(s) of the restricted area expire if 
no reevaluation occurs or if the Installation Commander determines that 
activation is no longer warranted.
    (4) Public notification of a temporary waterway restricted area 
activation by the Installation Commander will be made by the 325 
Fighter Wing Public Affairs office using all available mediums (marine 
VHF broadcasts [channels 13 and 16], local notices to mariners, local 
news media releases, social media postings on both the Tyndall official 
Web page [www.tyndall.af.mil] and Facebook [www.facebook.com/325FWTyndall], radio beepers through locally broadcasting stations, and 
the Tyndall Straight Talk [recorded telephone line 1-478-222-0011]). 
These mediums will be updated should the waterway restriction be 
extended beyond the initial 48 hour activation and/or terminated upon 
direction of the Installation Commander.
    (5) During times when the Installation Commander activates any 
portion(s) of the temporary restricted area defined in paragraph (a) of 
this section all entry, transit, drifting, anchoring or attaching any 
object to the submerged sea-bottom within the activated portion(s) of 
the restricted area is not allowed without the written permission of 
the Installation Commander, Tyndall AFB, Florida or his/her authorized 
representative. Previously affixed mooring balls established to support 
watercraft during intense weather conditions (i.e., tropical storms, 
hurricanes, etc.) may remain within the activated portion(s) of the 
restricted area, however watercraft should not be anchored to the 
mooring balls without the permission of the Installation

[[Page 15641]]

Commander, Tyndall AFB, Florida or his/her authorized representative.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Installation Commander, Tyndall AFB and/or such persons or 
agencies as he/she may designate.

    Dated: March 27, 2017.
Susan Whittington,
Acting Chief, Operations and Regulatory Division, Directorate of Civil 
Works.
[FR Doc. 2017-06296 Filed 3-29-17; 8:45 am]
 BILLING CODE 3720-58-P