04-17352. Department of Air Force, Wisconsin Air National Guard Danger Zone Under Restricted Air Space R-6903, Lake Michigan, Sheboygan County, WI

AGENCY:

United States Army Corps of Engineers, Department of Defense.

ACTION:

Final rule.

SUMMARY:

The Corps of Engineers is amending its regulations which establish a Danger Zone at an existing Military Exercise Area located off the Wisconsin shoreline in Lake Michigan from Manitowoc to Port Washington, as shown on NOAA Chart 14901 (1999). These regulations will enable the Wisconsin Air National Guard (WiANG) to advise fishermen and mariners in the vicinity when a military exercise is scheduled and thus ensure their safety by alerting them of temporary, potentially hazardous conditions which may exist as a result.

DATES:

Effective Date: August 30, 2004.

ADDRESSES:

U.S. Army Corps of Engineers, ATTN: CECW-CO, 441 G Street, NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT:

Ms. Joanne M. Barry, Headquarters Regulatory Branch, Washington, DC, at [phone], or Ms. Maria T. Valencia, Corps of Engineers, St. Paul District, Regulatory Branch, at [phone].

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 restricted area regulations in 33 CFR part 334 by adding § 334.145 which identifies the existing danger zone in Lake Michigan offshore from Manitowoc and Sheboygan Counties in Wisconsin, as shown on NOAA Chart 14901 (1999). By correspondence dated 3 July 2001, the WiANG has requested the Corps of Engineers to re-identify this danger zone. The area is located under Restricted Air Space R-6903 which is shown on existing aeronautical charts. This amendment of the regulation will allow WiANG to request that the Coast Guard issue a Notice to Mariners when exercises are planned and thus better inform fishermen and mariners of military activities in this area. WiANG intends to continue to schedule this area for use in a similar manner as it has been used during the past 20 years. Historical activity includes, but is not limited to, inert air-to-air and air-to-surface delivery, defensive countermeasures training and sonar buoy drops.

Procedural Requirements

a. Review Under Executive Order 12866

This 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 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 expects that the economic impact of the identification of this danger zone would have practically no impact on the public, no anticipated navigational hazard or interference with existing waterway traffic and accordingly, certifies that this proposal if adopted, will have no significant economic impact on small entities.

c. Review Under the National Environmental Policy Act

The St. Paul District has prepared an Environmental Assessment (EA) for this action. Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps has concluded 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. The EA may be reviewed at the St. Paul District office listed at the end of FOR FURTHER INFORMATION CONTACT, 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. Submission to Congress and the General Accounting Office

Pursuant to section 801(a)(1)(A) of the Administrative Procedure Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, the Army has submitted a report containing this Rule to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the General Accounting Office. This Rule is not a major Rule within the meaning of section 804(2) of the Administrative Procedures Act, as amended.

List of Subjects in 33 CFR Part 334

• Danger zones
• Marine safety
• 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

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. Section 334.845 is added to read as follows:

§ 334.845

Wisconsin Air National Guard, Volk Field military exercise area located in Lake Michigan offshore from Manitowoc and Sheboygan Counties; Danger Zone.

(a) The area. (1) The waters within an area beginning at a point at latitude 43°19′00″ N., longitude 87°41′00″ W.; to latitude 44°05′30″ N., longitude 87°29′45″ W.; to latitude 44°02′00″ N., longitude 87°02′30″ W.; to latitude 43°15′30″ N., longitude 87°14′00″ W.; thence to the point of beginning, as shown on NOAA Chart 14901 (1999) and existing aeronautical charts.

(b) The regulation. (1) During specific, infrequent periods when Military exercises will be conducted, as promulgated in the Local Notice to mariners published by the United States Coast Guard (USCG), all vessels entering the danger zone are advised to proceed across the area by the most direct route and without unnecessary delay. (2) During specific, infrequent periods when Military exercises will be conducted, as promulgated in the Local Notice to mariners published by the USCG , no vessel or craft of any size shall lie-to or anchor in the danger zone, other than a vessel operated by or for the USCG, or any other authorized agency.

(c) Normal use. At all other times, nothing in this regulation shall prohibit any lawful uses of this area.

(d) Enforcement. The regulation in this section shall be enforced by the Commanding Officer, VOLK Field, WI, and/or persons or agencies as he/she may designate.

Dated: June 28, 2004.

Michael B. White,

Chief, Operations Division, Directorate of Civil Works.