2011-4280. Naval Surface Warfare Center, Upper Machodoc Creek and the Potomac River, Dahlgren, VA; Danger Zone

AGENCY:

U.S. Army Corps of Engineers, DoD.

ACTION:

Final rule.

SUMMARY:

The U.S. Army Corps of Engineers is amending its regulations for the existing danger zone in the vicinity of Naval Surface Warfare Center, Dahlgren, in King George County, Virginia. The amendment changes the description of the hazardous operations in the area, the hours of operation, and expands the boundaries of a portion of the danger zone. The amendment is necessary to protect the public from potentially hazardous conditions which may exist as a result of use of the areas by the United States Navy.

DATES:

Effective Date: March 28, 2011.

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 [e-mail], or Mr. Robert Berg, Corps of Engineers, Norfolk District, Regulatory Branch, at 757-201-7793 or by e-mail at [e-mail].

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 33 CFR 334.230 to: Expand the description of continuing hazardous operations in the danger zone to include firing of large or small caliber guns and projectiles, aerial bombing, directed energy technology, and manned or unmanned water craft operations; expand the Middle Danger Zone farther into Upper Machodoc Creek where operations involving directed energy, watercraft maneuvers and transportation of explosives are conducted; add a 100-yard buffer to prevent public contact with unexploded ordinance along the shoreline of the Naval Facility within the Middle Danger Zone; and extend normal hours of operation of hazardous operations from 4 p.m. to 5 p.m. The danger zone represents a public safety buffer beyond the physical boundaries of the test range to further reduce the safety threat to the boating public.

The proposed rule was published in the November 10, 2010, issue of the Federal Register (75 FR 69033) with the docket number COE-2010-0038 and no comments were received.

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 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 closed. 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

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

PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS

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).

2. Revise paragraph (a) of § 334.230 to read as follows:

§ 334.230

Potomac River.

(a) Naval Surface Warfare Center, Dahlgren, VA—(1) The areas. Portions of the Upper Machodoc Creek and Potomac River near Dahlgren, VA as described below:

(i) Lower zone. The entire portion of the lower Potomac River between a line from Point Lookout, Maryland, to Smith Point, Virginia, and a line from Buoy 14 (abreast of St. Clements Island) to a point near the northeast shore of Hollis Marsh at latitude 38°10′00″, longitude 76°45′22.4″. Hazardous operations are conducted in this zone at infrequent intervals.

(ii) Middle zone. Beginning at the intersection of the Harry W. Nice Bridge with the Virginia shore; thence to Light 33; thence to latitude 38°19′06″, longitude 76°57′06″ which point is about 3,300 yards east-southeast of Light 30; thence to Line of Fire Buoy O, about 1,150 yards southwest of Swan Point; thence to Line of Fire Buoy M, about 1,700 yards south of Potomac View; thence to Line of Fire Buoy K, about 1,400 yards southwesterly of the lower end of Cobb Island; thence to Buoy 14, abreast of St. Clements Island, thence southwest to a point near the northeast shore of Hollis Marsh at latitude 38°10′00″; longitude 76°45′22.4″; thence northwest to Line of Fire Buoy J, about 3,000 yards off Popes Creek, Virginia; thence to Line of Fire Buoy L, about 3,600 yards off Church Point; thence to Line of Fire Buoy N, about 900 yards off Colonial Beach; thence to Line of Fire Buoy P, about 1,000 yards off Bluff Point; thence northwest to latitude 38°17′54″, longitude 77°01′02″, a point of the Virginia shore on property of the Naval Support Facility Dahlgren, a distance of about 4,080 yards; thence north along the Potomac shore of Naval Surface Warfare Center, Dahlgren to Baber Point; and thence west along the Upper Machodoc Creek shore of Naval Surface Warfare Center, Dahlgren to Howland Point at latitude 38°19′0.5″, longitude 77°03′23″; thence northeast to latitude 38°19′18″, longitude 77°02′29″, a point on the Naval Surface Warfare Center, Dahlgren shore about 350 yards southeast of the base of the Navy recreational pier. Hazardous operations are normally conducted in this zone daily except Saturdays, Sundays, and national holidays.

(iii) Upper zone. Beginning at Mathias Point, Va.; thence north to Light 5; thence north-northeast to Light 6; thence east-southeast to Lighted Buoy 2, thence east-southeast to a point on the Maryland shore at approximately latitude 38°23′35.5″, longitude 76°59′15.5″; thence south along the Maryland shore to, and then along, a line passing through Light 1 to the Virginia shore, parallel to the Harry W. Nice Bridge; thence north with the Virginia shore to the point of beginning. Hazardous operations are conducted in this zone at infrequent intervals.

(2) The regulations. (i) Hazardous operations normally take place between the hours of 8 a.m. and 5 p.m. daily except Saturdays, Sundays and national holidays, with infrequent night firing between 5 p.m. and 10:30 p.m. During a national emergency, hazardous operations will take place between the hours of 6 a.m. and 10:30 p.m. daily except Sundays. Hazardous operations may involve firing large or small caliber guns and projectiles, aerial bombing, use of directed energy, and operating manned or unmanned watercraft.

(ii) When hazardous operations are in progress, no person, or fishing or oystering vessels shall operate within the danger zone affected unless so authorized by the Naval Surface Warfare Center, Dahlgren's patrol boats. Oystering and fishing boats or other craft may cross the river in the danger zone only after they have reported to the patrol boat and received instructions as to when and where to cross. Deep-draft vessels using dredged channels and propelled by mechanical power at a speed greater than five miles per hour may proceed directly through the danger zones without restriction except when notified to the contrary by the patrol boat. Unless instructed to the contrary by the patrol boat, small craft navigating up or down the Potomac River during hazardous operations shall proceed outside of the northeastern boundary of the Middle Danger Zone. All craft desiring to enter the Middle Danger Zone when proceeding in or out of Upper Machodoc Creek during hazardous operations will be instructed by the patrol boat; for those craft that desire to proceed in or out of Upper Machodoc Creek on a course between the western shore of the Potomac River and a line from the Main Dock of Naval Surface Warfare Center, Dahlgren to Line of Fire Buoy P, clearance will be granted to proceed upon request directed to the patrol boat.

(iii) Due to hazards of unexploded ordnance, no person or craft in the Middle Danger Zone shall approach closer than 100 yards to the shoreline of Naval Surface Warfare Center, Dahlgren, previously known as the Naval Surface Weapons Center.

(3) Enforcement. The regulations shall be enforced by the Commander, Naval Surface Warfare Center, Dahlgren and such agencies as he/she may designate. Patrol boats, in the execution of their mission assigned herein, shall display a square red flag during daylight hours for purposes of identification; at night time, a 32 point red light shall be displayed at the mast head. Naval Surface Warfare Center, Dahlgren (Range Control) can be contacted by Marine VHF radio (Channel 16) or by telephone [phone].

(4) Exceptions. Nothing in this regulation shall be intended to prevent commercial fishing or the lawful use of approved waterfowl hunting blinds along the shorelines of Naval Surface Warfare Center, Dahlgren, provided that all necessary licenses and permits have been obtained from the Maryland Department of Natural Resources, the Virginia Department of Game and Inland Fisheries, or the Potomac River Fisheries Commission. Waterfowl hunters shall provide a completed copy of their blind permit to the Natural Resources Manager at Naval Surface Warfare Center, Dahlgren. Commercial fishermen and waterfowl hunters must observe all warnings and range clearances, as noted herein. Federal, State and local law enforcement agencies are exempt from the provisions of paragraph (a) of this section.

* * * * *

Dated: February 22, 2011.

Jonathan A. Davis,

Deputy Chief, Operations and Regulatory, Directorate of Civil Works.