[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Rules and Regulations]
[Pages 64200-64202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25273]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334

[COE-2017-0011]


James River, Skiffes Creek, and Warwick River Surrounding Joint 
Base Langley-Eustis (JBLE-Eustis), Virginia; Restricted Areas and 
Danger Zones

AGENCY: United States Army Corps of Engineers, Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Corps of Engineers is establishing restricted areas and 
danger zones in the waters of the James River, Skiffes Creek and 
Warwick River in Newport News, Virginia. JBLE-Eustis contains a 
military port, berthing numerous Army vessels, and conducts exercises 
to include small craft testing and live fire training activities. The 
amendment is necessary to protect the public from hazards associated 
with training and mission operations, and to protect government assets, 
missions, and the base population in general. The amendment increases 
the restricted areas and creates danger zones surrounding the existing 
installation and firing ranges.

DATES: Effective date: December 23, 2019.

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

FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, 
Operations and Regulatory Division, Washington, DC at 202-761-4922.

SUPPLEMENTARY INFORMATION: The proposed rule was published in the May 
23, 2018, edition of the Federal Register (83 FR 23864) and the 
regulations.gov docket number was COE-2017-0011. In response to the 
proposed rule, three comments were received. One commenter stated that 
additional clarification was needed regarding the proposed areas 
coordinates because as written it is unclear what the intended extent 
of the areas should be, therefore, the applicant provided corrected 
coordinates and modified the rule text to address the charting 
concerns.
    Another commenter stated that they are not in opposition to the 
proposal, however, they believe that an Environmental Impact Statement 
(EIS) should be provided to the public prior to the comment period 
closing. The preliminary review prior to publishing the proposed rule 
for comment determined that an EIS was not warranted for the proposed 
rule and no additional information was identified during review 
warranting a change to this finding.
    One commenter stated that they fully support the proposed 
restricted areas and danger zones, and no further evaluation was 
warranted.
    In response to a request by the United States Air Force, and 
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 33 CFR 334.280 to establish permanent restricted 
areas and danger zones, in the waters of the James River, Skiffes 
Creek, and Warwick River in Newport News, Virginia. The permanent 
restricted areas and the danger zones are necessary to protect the 
public from hazards associated with training and mission operations, 
and to fulfill the current security needs of the Department of the Air 
Force to protect government assets, missions, and the base population 
in general at the facility.

Procedural Requirements

a. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. For the reasons stated 
below, this final rule is not a

[[Page 64201]]

``significant regulatory action'' under Executive Order 12866. 
Accordingly, this final rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    The Corps determined this final rule is not a significant 
regulatory action. This regulatory action determination is based on the 
rules governing the restricted areas, which allow any vessel that needs 
to transit the restricted areas and danger zones to do so if the 
operator of the vessel obtains permission from Commander, JBLE-Eustis, 
and/or other persons or agencies as he/she may designate.

b. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The Corps certifies under 5 U.S.C. 605(b) that this rule would not 
have a significant economic impact on a substantial number of small 
entities. While some owners or operators of vessels that intend to 
transit the restricted areas may be small entities, for the reasons 
stated in paragraph (a) above this rule would not have a significant 
economic impact on any vessel owner or operator. In addition, the 
restricted areas and danger zones are necessary to protect vessels and 
personnel assigned to JBLE-Eustis by implementing a waterside security 
program. They are also necessary to protect the public. Small entities 
can also utilize navigable waters outside of the restricted areas and 
danger zones. Small entities that need to transit the restricted areas 
and danger zones may do so as long as vessel operators obtain 
permission from the Commander, JLBE-Eustis, and/or other persons or 
agencies as he/she may designate. Entities that want to conduct other 
activities in or near the restricted area may need to obtain other 
approvals from the applicable Federal, state, or local government 
authority. The restricted areas are necessary for security of JBLE-
Eustis. The danger zones are necessary for protect the public from 
hazards associated with training and mission operations. The Corps 
expects that the economic impact of the restricted areas and danger 
zones would have practically no impact on the public, any anticipated 
navigational hazard or interference with existing waterway traffic. 
After considering the economic impacts of this restricted area and 
danger zone 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

    Due to the administrative nature of this action and because there 
is no intended change in the use of the area, the Corps has determined 
that this 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 has been prepared. It may be reviewed at the District office 
listed at the end of the FOR FURTHER INFORMATION CONTACT section, 
above.

d. Unfunded Mandates Act

    This 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.

e. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing the final rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This final rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

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.  334.280 to read as follows:


Sec.  334.280  James River, Skiffes Creek and Warwick River surrounding 
Joint Base Langley-Eustis, Virginia; restricted areas and danger zones.

    (a) The areas. The datum for the coordinates for the restricted 
areas and danger zones described in this section is NAD-83.
    (1) Army Training and Small Craft Testing Area (restricted area). 
Beginning on the shore at latitude 37[deg]09'53'' N, longitude 
76[deg]36'23'' W; thence westerly to latitude 37[deg]09'53'' N, 
longitude 76[deg]36'59'' W; thence westerly to latitude 37[deg]09'50'' 
N, longitude 76[deg]37'45'' W; thence southerly to latitude 
37[deg]09'00'' N, longitude 76[deg]38'05'' W; thence southerly to 
latitude 37[deg]08'22'' N, longitude 76[deg]37'55'' W; thence due east 
to the shore at latitude 37[deg]08'22'' N, longitude 76[deg]37'20'' W; 
thence northerly following the shoreline to the point of beginning.
    (2) 3rd Port Facility (restricted area). An area surrounding the 
3rd Port facility, Fort Eustis, beginning at a point on the shoreline 
at latitude 37[deg]09'53'' N, longitude 76[deg]36'23'' W; thence 
northerly, following the shoreline to latitude 37[deg]10'03'' N, 
longitude 76[deg]36'25'' W; thence northerly, following the shoreline 
to latitude 37[deg]10'19'' N, longitude 76[deg]36'07'' W; thence 
northerly, across the mouth of Bailey's Creek to latitude 
37[deg]10'24'' N, longitude 76[deg]36'02'' W; thence northerly, 
following the shoreline to latitude 37[deg]10'29'' N, longitude 
76[deg]36'06'' W; thence westerly, across Skiffes Creek to latitude 
37[deg]10'33'' N, longitude 76[deg]36'20'' W; thence southerly 
following the shoreline to latitude 37[deg]10'13'' N, longitude 
76[deg]36'42'' W; thence southerly to latitude 37[deg]09'53'' N, 
longitude 76[deg]36'59'' W; thence to the point of beginning.
    (3) Warwick River and any tributaries, creeks, estuaries, tidal 
areas, to include Butlers Gut and Jail Creek (restricted area). All 
navigable waters of the United States as defined in 33 CFR part 329 
within the boundaries of Fort Eustis, westerly of a line connecting the 
following coordinates: Commencing from the shoreline at latitude 
37[deg]09'47'' N, longitude 76[deg]33'52'' W; thence following the 
meanders of the installation boundary along the westerly mean low 
waterline of Warwick River, thence to a point on the installation

[[Page 64202]]

boundary at latitude 37[deg]04'35'' N, longitude 76[deg]33'19'' W.
    (4) James River and any tributaries, creeks, estuaries, tidal 
areas, to include Nells Creek, Locust Neck Creek, Dudleys Creek, 
Morrisons Creek, Morleys Gut, Blows Creek, and Milstead Creek 
(restricted area). Navigable waters of the United States as defined at 
33 CFR part 329 within the boundaries of Fort Eustis, north/north-
easterly of a line connecting the following coordinates: Commencing 
from the shoreline at latitude 37[deg]04'35'' N, longitude 
76[deg]33'19'' W; thence following the meanders of the installation 
boundary along the northeasterly mean low waterline of the James River, 
thence to a point on the installation boundary at latitude 
37[deg]10'03'' N, longitude 76[deg]36'25'' W at a point at the mouth of 
Skiffes Creek.
    (5) Skiffes Creek and any tributaries, creeks, estuaries, tidal 
areas, to include Baileys Creek (restricted area). All navigable waters 
of the United States as defined at 33 CFR part 329 within the 
boundaries of Fort Eustis, easterly of a line connecting the following 
coordinates: Commencing from a point on the installation boundary at 
latitude 37[deg]10'03'' N, longitude 76[deg]36'25'' W; thence 
northerly, following the shoreline to latitude 37[deg]10'19'' N, 
longitude 76[deg]36'07'' W; thence northerly, across the mouth of 
Bailey's Creek to latitude 37[deg]10'24'' N, longitude 76[deg]36'02'' 
W; thence northerly, following the shoreline to latitude 37[deg]10'29'' 
N, longitude 76[deg]36'06'' W; thence northerly, following the meanders 
of the installation boundary to a point at the centerline of an unnamed 
tributary at latitude 37[deg]10'36'' N, longitude 76[deg]36'01'' W; 
thence southeasterly, following the centerline of the unnamed tributary 
to a point on the installation boundary at latitude 37[deg]10'24'' N, 
longitude 76[deg]35'32'' W.
    (6) Danger Zone Warwick River. Navigable waters of the United 
States as defined at 33 CFR part 329 that encroach upon the boundaries 
of the Danger Zone of Fort Eustis, westerly of a line connecting the 
following coordinates: Commencing from the installation boundary at 
latitude 37[deg]06'44'' N, longitude 76[deg]34'04'' W; thence to a 
point at latitude 37[deg]06'44'' N, longitude 76[deg]34'02'' W; thence 
to a point at latitude 37[deg]06'35'' N, longitude 76[deg]33'56'' W; 
thence to a point at latitude 37[deg]06'28'' N, longitude 
76[deg]33'57'' W; thence to a point at latitude 37[deg]06'15'' N, 
longitude 76[deg]33'30'' W; thence to a point at latitude 
37[deg]05'43'' N, longitude 76[deg]33'13'' W; thence to a point at 
latitude 37[deg]05'33'' N, longitude 76[deg]33'17'' W; thence to a 
point at latitude 37[deg]05'13'' N, longitude 76[deg]32'53'' W; thence 
to a point at latitude 37[deg]05'03'' N, longitude 76[deg]33'09'' W; 
thence following the meanders of the installation boundary along the 
southwesterly mean low waterline of Warwick River, thence to a point at 
latitude 37[deg]04'52'' N, longitude 76[deg]33'13'' W; thence to a 
point at latitude 37[deg]04'49'' N, longitude 76[deg]33'11'' W; thence 
to a point at latitude 37[deg]04'43'' N, longitude 76[deg]33'28'' W; 
thence following the meanders of the installation boundary along the 
southwesterly mean low waterline of Warwick River, thence to a point at 
latitude 37[deg]04'35'' N, longitude 76[deg]33'19'' W.
    (7) Danger Zone James River. Navigable waters of the United States 
as defined at 33 CFR part 329 that encroach upon the boundaries of the 
Danger Zone of Fort Eustis, north/north-easterly of a line connecting 
the following coordinates: Commencing from the installation boundary at 
latitude 37[deg]04'35'' N, longitude 76[deg]33'19'' W; thence following 
the meanders of the installation boundary along the easterly mean low 
waterline of James River to a point at latitude 37[deg]04'39'' N, 
longitude 76[deg]33'39'' W; thence to a point at latitude 
37[deg]04'33'' N, longitude 76[deg]34'15'' W; thence to a point at 
latitude 37[deg]04'52'' N, longitude 76[deg]34'19'' W; thence to a 
point at latitude 37[deg]04'52'' N, longitude 76[deg]34'18'' W; thence 
to a point at latitude 37[deg]04'60'' N, longitude 76[deg]34'20'' W; 
thence to a point at latitude 37[deg]05'19'' N, longitude 
76[deg]34'51'' W; thence to a point at latitude 37[deg]05'53'' N, 
longitude 76[deg]35'00'' W; thence to a point at latitude 
37[deg]06'03'' N, longitude 76[deg]35'08'' W; thence following the 
meanders of the installation boundary along the easterly mean low 
waterline of James River, thence to a point at latitude 37[deg]06'40'' 
N, longitude 76[deg]35'52'' W; thence to a point at latitude 
37[deg]06'35'' N, longitude 76[deg]36'19'' W; thence to a point on the 
installation boundary at latitude 37[deg]06'50'' N, longitude 
76[deg]36'21'' W.
    (b) The regulations. (1) For the restricted areas defined in 
paragraphs (a)(1) and (2) of this section:
    (i) All vessels will contact the 3rd Port Harbor Master on marine 
channel 12 or 68 prior to entering or transiting these restricted 
areas.
    (ii) The passage of fishing vessels to or from authorized traps, or 
the transit of commercial vessels, will be coordinated with the 3rd 
Port Harbor Master on marine channel 12 or 68.
    (iii) The harvesting and cultivation of oyster beds or the setting 
of fish traps within these restricted areas will be allowed provided 
the commercial fisherman coordinate access to these areas with the 3rd 
Port Harbor Master on marine channel 12 or 68.
    (iv) The Commander, Joint Base Langley-Eustis will, to the extent 
possible, give public notice from time to time through local news media 
and the Coast Guard's Local Notice to Mariners of the schedule of 
intended Department of Defense use of the restricted areas.
    (2) For the restricted areas defined in paragraphs (a)(3), (4), and 
(5) of this section:
    (i) Entry into these areas is for official government purposes 
only, or as authorized by the Commander, Joint Base Langley-Eustis.
    (ii) Entry will be coordinated and conducted in accordance with the 
policies and procedures established by the Commander, Joint Base 
Langley-Eustis.
    (3) For the danger zones defined in paragraphs (a)(6) and (7) of 
this section:
    (i) Persons, vessels or other craft shall not enter or remain in 
the danger zone when firing is or will soon be in progress unless 
authorized to do so by the enforcing agency.
    (ii) Advance notice of the schedule of small arms firing will be 
provided via the Joint Base Langley-Eustis web page.
    (iii) All projectiles will be fired to land within the impact area 
on the Fort Eustis peninsula. Neither the Department of the Army nor 
the Department of the Air Force will be responsible for damages by such 
projectiles to nets, traps, buoys, pots, fishpounds, stakes, or other 
equipment which may be located within these danger zones.
    (c) Enforcement. The regulations of this section shall be enforced 
by the Commander, Joint Base Langley-Eustis, Virginia, and such 
agencies as the commander may designate.

    Dated: November 15, 2019.
Thomas P. Smith,
Chief, Operations and Regulatory Division, Directorate of Civil Works.
[FR Doc. 2019-25273 Filed 11-20-19; 8:45 am]
 BILLING CODE 3720-58-P