2020-14131. Pacific Ocean at Naval Base Guam Telecommunication Site, Finegayan Small Arms Range, on the Northwestern Coast of Guam; Danger Zone

AGENCY:

U.S. Army Corps of Engineers, DoD.

ACTION:

Final rule.

SUMMARY:

The Corps of Engineers (Corps) is amending its danger zone regulations to establish a danger zone in the Pacific Ocean adjacent to the existing Finegayan Small Arms Range at Naval Base Guam telecommunication site on the northwestern coast of Guam. The danger zone is located entirely within the Pacific Ocean, comprising 892 acres and extending 2.36 miles into the ocean from the high tide line. Establishment of the danger zone will intermittently prohibit vessels from lingering in the danger zone when the small arms range is in active use in order to ensure public safety.

DATES:

Effective August 19, 2020.

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, at [e-mail] or 202-761-4922.

SUPPLEMENTARY INFORMATION:

In response to a request by the United States Navy, 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 (Corps) is amending its danger zone regulations to establish a permanent danger zone in the Pacific Ocean adjacent to the Finegayan Small Arms Range (FSAR) on Guam. The danger zone will be added at 33 CFR 334.1415. The danger zone is needed for the Department of Defense to meet its mission under 10 U.S.C. 5062, which is to maintain, train, and equip combat-ready military forces, deterring aggression, and maintaining freedom of the seas. Due to the strategic location of Guam and the Department of Defense's ongoing reassessment of the Western Pacific military alignment, there has been an increase in the importance of the FSAR as a training and testing venue. The danger zone is necessary to protect the public from hazards associated with small arms training.

The proposed rule was published in the Federal Register on December 13, 2018 (83 FR 64053). The regulations.gov docket number was COE-2018-0005. Concurrently, a local public notice for the proposed danger zone was sent out from the Honolulu District. In response to the proposed rule, 45 comments were received. The comments are summarized below, with the Corps' responses to those comments.

Several commenters requested a time extension for the public comment period. Twenty-two commenters requested either a public hearing with the Corps or public meetings with representatives of the Navy and/or Corps. The commenters requested these meetings to better understand the impacts of the FSAR and the proposed danger zone, and to have an open dialogue and discussion.

The Corps determined that 30 days was sufficient to provide comments on the proposed danger zone regulation. The Corps' regulations at 33 CFR part 327 allow district engineers to conduct public hearings for the purpose of acquiring information which will be considered in evaluating a proposed action that requires a decision by the Corps. A public hearing gives the public an opportunity to present their views, opinions, and information on a proposed action. The district engineer has the discretion to not hold a public hearing if he or she determines that there would be no valid interest to be served by a public hearing, or a public hearing would not result in interested parties presenting information that could not be provided to the Corps via comments submitted in response to a proposed rule or a proposed permit action. The Corps district carefully reviewed all of the requests for a public hearing or public meetings, as well as the comments received in response to the proposed rule, and concluded that a public hearing would not identify issues or concerns that were not already identified and discussed in the comments submitted in response to the proposed rule and the district's public notice. Therefore, the district engineer decided not to hold any public hearings or public meetings for this proposed rule.

A couple of commenters requested the Corps prepare an environmental impact statement (EIS) for the proposed rule. Several commenters expressed concerns with the 2010 Mariana Islands Range Complex Environmental Impact Statement/Overseas Environmental Impact Statement and the 2015 Mariana Islands Training and Testing Environmental Impact Statement/Overseas Environmental Impact Statement and compliance with federal laws, including the Coastal Zone Management Act, the Magnuson-Stevens Fishery Conservation and Management Act, the Endangered Species Act, and the National Historic Preservation Act. Some commenters requested that additional studies be conducted, as well as additional assessments of the impacts, to better understand the effects of the Mariana Islands Range Complex and training activities on natural resources, historical and cultural resources, the economy, and to the people of Guam. One commenter said that specific sections of these EIS documents should be referenced and stated the public notice, or the public notice should be considered incomplete. Several commenters requested a review of cumulative impacts. One commenter asked how the proposed danger zone relates to the future Marine Corps base. One commenter wanted to know how the Corps will mitigate any impacts to the environment.

For the purposes of the National Environmental Policy Act (NEPA), the federal action being undertaken by the Corps is the promulgation of the danger zone regulation under its authorities at 33 U.S.C. 1 and 3 and the procedures in 33 CFR part 334. The Corps is responsible for assessing the impacts of the proposed danger zone on the human environment, and for preparing appropriate NEPA documentation for its decision on whether to issue the final rule for the danger zone. To comply with NEPA requirements, the Corps prepared an environmental assessment for this rulemaking action and concluded that the establishment of the danger zone would not have a significant impact on the quality of the human environment and therefore does not require the preparation of an EIS. A copy of the environmental assessment is available from the Corps district office. The establishment of this danger zone would not result in work, structures, or construction within the Pacific Ocean, or any modification to any vegetation, habitat, or structures in the Pacific Ocean, on the shore, or on the land. Therefore, it will not have any impacts on natural resources or historical and cultural resources. With respect to impacts to people on Guam, the danger zone is intended to protect the public from hazards that may result from the use of the FSAR at the Naval Base Guam telecommunication site. The boundaries of the danger zone will be plotted by National Oceanic and Atmospheric Administration on its nautical charts, which will help alert users of those navigable waters to the danger zone.

For the establishment and operation of the FSAR itself, the Navy is the Federal agency responsible for compliance with applicable federal laws, which may include Section 7 of the Endangered Species Act, the Essential Fish Habitat provisions of the Magnuson-Stevens Fishery Conservation and Management Act, Section 106 of the National Historic Preservation Act, and the Coastal Zone Management Act. The Navy's documents demonstrating compliance with these laws and concurrences from the agencies administering these laws can be obtained from the Marianas Islands Training and Testing website at https://mitt-eis.com.

Cumulative impacts were evaluated in the environmental assessment prepared by the Corps district for this final rule. The establishment of a future Marine Corps base on Guam is a separate action that is outside of the Corps' rulemaking action for the establishment of this danger zone. Therefore, the Corps is not required address that potential future action in its NEPA documentation. Since the danger zone will be in effect only when the FSAR is in use and the establishment of the danger zone will promote public safety and will not have any physical environmental effects, impacts to the human environment have been minimized. The Corps has determined there is no need or requirement for mitigation beyond incorporating into the rule text measures to minimize impacts to maritime traffic and fishing activities.

Multiple commenters expressing concern about potential impacts of the danger zone on Guam's fishing industry. Multiple individuals provided comments about impacts to commercial tourism operations, subsistence fishing, and recreational fishing. One commenter stated that the danger zone would create additional restrictions to subsistence and artisanal fishers. Several commenters wanted to better understand how the establishment of a danger zone would impact the movement of the fishing community up and down the coast, and whether fishermen would be forced to move into less safe waters outside the danger zone. Many commenters wanted to know how often access to the proposed danger zone would be restricted.

The Corps' regulations require that danger zones and restricted areas provide public access to the area to the maximum extent practicable and not cause unreasonable interference with or restrict the food fishing industry (see 33 CFR 334.3(a) and (b), respectively). The regulations require the Corps to consult with the Regional Directors of the U.S. Fish and Wildlife Service and National Marine Fisheries Service regarding impacts to the food fishing industry. The Corps district sent each agency a letter dated May 6, 2019, requesting comments in relation to the food fishing industry. Neither agency responded to those letters.

The establishment of a danger zone would intermittently restrict commercial, public, and private vessels from entering or lingering in the danger zone to ensure public safety during small arms training activities at the FSAR. Although the danger zone would restrict use of the waters within its boundaries while the small arms range is in use, it would not restrict access through the danger zone to fishing grounds to the north or south. While the small arms range is in use, the Navy would halt training activities to allow vessels to expeditiously transit through the danger zone. When the range is not in use, the waters within the danger zone boundaries would be open to fishing.

Upon establishment of the danger zone, nautical charts will be updated to identify the boundaries of the danger zone for mariner awareness and route planning. A Notice to Mariners will also be issued each time the range is active. The Corps has determined that the Navy has provided for public access to the area to the maximum extent practicable. Additionally, the Corps has determined, based on the Navy allowing fishing vessels to transit through the danger zone, that there will not be unreasonable interference or restrictions to the food fishing industry.

The Corps received multiple comments about the impacts of the danger zone to recreation and access, including impacts to the native Chamorro population as well as tourism operations. Several people wanted to know if the restrictions associated with the danger zone would result in economic impacts. Some commenters expressed concern about how the danger zone may affect local property owners.

The Corps' regulations state that danger zone regulations shall provide for public access to the area to the maximum extent practicable. This danger zone will intermittently restrict commercial, public, and private vessels from entering or lingering in the danger zone to ensure public safety during small arms training activities. Although the danger zone would restrict use of the waters within its boundaries while the small arms range is in use, it would not restrict access through the danger zone to areas north or south. While the small arms range is in use, the Navy would halt training activities to allow vessels to expeditiously transit through the danger zone. When the range is not in use, the danger zone would be open to normal maritime activities. Therefore, it will only have intermittent impacts on recreation and access for the public, including the native Chamorro population. Based on previous operations of the FSAR, the Corps has determined that the establishment of the danger zone regulation would have no economic impact on Guam's tourism industry or cruise vessel operations. The danger zone is located completely in the waters of the Pacific Ocean. The Corps has determined that the establishment of the danger zone would cause no disruption in access to homes or businesses.

Multiple commenters expressed concerns about potential effects to cultural and historical resources. Several commenters expressed their belief that Chamorro cultural values and practices would be jeopardized by the proposed establishment of the danger zone. Several commenters wanted to know if the range would limit access to ancient and sacred historical sites that are regularly visited by the Chamorro people. One commenter wanted to know if the danger zone would have any implications on the “2011 Programmatic Agreement” and whether public access to Haputo Reef, Double Reef, and Tweed's Cave would be affected by the proposed danger zone. Others provided information about the existing cultural and historic sites near the FSAR. Several others had specific questions about how it would affect traditional fishing grounds. A couple of individuals asserted that Chamorro traditional fishing grounds should not be inaccessible to the Chamorro people. One commenter wanted to know how the danger zone would affect Chamorro medicinal plant and coconut crab collecting practices.

The danger zone restricts the use of navigable waters to protect the public during small arms training activities. It does not involve any actions that have the potential to cause effects to historic properties, cultural resources, or sacred cultural sites. There would be no construction, structures, or in-water work associated with the establishment of the danger zone. The Corps acknowledges that there may be temporary disruptions to accessing traditional fishing grounds when the range is in use and has determined that these disruptions would be minimal, and are necessary for safety. When the range is not in use, the danger zone will be open and the waters available to public water users.

The danger zone is not associated with the 2011 Programmatic Agreement. Public access to Haputo Beach, Double Reef, and Tweed's cave is available via the Joint Region Marianas Public Access Plan for Historic and Cultural Sites when the range is not in use. In addition, coconut crab collection is not authorized on Department of Defense property.

Multiple commenters voiced concerns about potential effects to upland and in-water plants and animals in and adjacent to the danger zone, including the fruit bat, fish, corals, sea turtles, and other aquatic species. Several commenters expressed concerns about potential impacts to threatened and endangered species and Essential Fish Habitat. One commenter wanted to know if the danger zone would negatively impact the presence and propagation of coconut trees or any other endemic or native plants and trees.

The establishment of the danger zone will not result in a modification to any vegetation, habitat, or structures in the Pacific Ocean, on the shore, or on the land. Establishment of the danger zone will not have any effect on land-based plants and animals. If humans are not able to loiter in the danger zone while the firing range is operational, then there may be less human impact on marine ecosystems within the boundaries of the danger zone. Therefore, the restrictions imposed by the establishment of the danger zone are likely to have negligible or mildly beneficial impacts on marine life. The establishment of the danger zone will have no effect on marine species and habitat, including coral species, listed under the Endangered Species Act and it will have no adverse effect on Essential Fish Habitat. Although the Corps has the authority to establish danger zones to protect the public from potential dangers imposed by target practice, bombing, rocket firing or other especially hazardous operations, the Corps does not regulate boating activities in general, and does not have the authority to control environmental effects that may be caused by boating activities.

The Corps received comments expressing concern about the safety risks associated with the operation of the danger zone. A couple of commenters wanted more information about how the limits of the firing range, extending into the ocean up to 2.36 nautical miles from the shore, were determined. A couple of commenters inquired about the efficacy of the red flag and strobe light. One commenter asked if the red flag that would be used to communicate with mariners during the daytime and strobe light that would be used to communicate with mariners during the nighttime could be seen under all weather conditions in the entirety of the proposed danger zone. A commenter wanted to know what other methods of alerting the public that the firing range was in use were considered. One commenter asked if fishermen could be notified in advance to help better plan their trip. One individual inquired about installing a warning system at Gregorio D. Perez Marina where most boaters launch.

The danger zone boundaries were established to include all areas where a potential hazard exists for a projectile not being contained by the earthen berms at the FSAR, although this type of event has a very low probability of occurring. Danger zones are established for this reason to ensure safe range operations. The parameters of the danger zone were determined by the maximum distance a small arms round can travel. The Navy has no plans to expand the footprint of the existing ranges, increase weapons caliber, or use these ranges for bombing, rocket firing, or other especially hazardous operations. Targets would not be placed within the danger zone. These ranges would continue to be used in the same capacity as they were used since the 1970s.

Similar to navigation lights/aids on buoys and approach lighting for airfields, the strobe light (nighttime), would be visible under all weather conditions that would be conducive to small boat and small arms range operations. The red flag (daytime) method of identifying an active danger zone is currently in use at the Naval Base Guam Known Distance and Multi-Purpose Ranges and has proven to be an effective method of alerting the public of small arms range operation. The red flag and strobe light were the only methods of alerting the public that were considered by the Navy. The strobe light was added for the FSAR as an additional method of alerting the public during nighttime operations of the range. The red flag and strobe light have been proven effective in alerting the public and have been proven as feasible methods of identifying the danger zones as being active. It should also be noted that an added measure of safety is taken in that small arms range operating procedures require a lookout to be present during range operations as a positive means to verify the danger zone is clear. If a fisherman or other vessel inadvertently enters the danger zone area, range operations would cease until the danger zone is clear. In addition, small arms range operating procedures require specially qualified range supervisors and operators to oversee small arms range operations. These specially qualified personnel ensure all small arms range safety procedures are followed and provide an added layer of safety to prevent errant bullets from leaving the confines of the small arms range berms.

A Notice to Mariners will be issued each time the range is active. These notices are issued to notify mariners that an established danger zone is active. In addition, after this final rule is issued, nautical charts will be updated by the National Oceanic and Atmospheric Administration's Office of Coast Survey to identify the boundaries of the danger zone for mariner awareness and route planning. Due to the many safety layers and advanced notification actions mentioned above, which have been proven effective, the Navy is not planning a warning system located at Gregorio D. Perez Marina.

Multiple commenters expressed concern with the potential for the firing range and danger zone to contribute to contamination of the air and water. Specific concerns included the introduction of lead, antimony, copper, zinc, nickel, arsenic, and other contaminants into the environment that could pose an environmental or human health threat. One commenter wanted to know if contaminants from the danger zone would impact the Haputo Ecological Reserve.

The establishment of a danger zone in the Pacific Ocean adjacent to the FSAR is an administrative procedure that restricts navigable access to a portion of the ocean during small arms training activities to protect public safety. There will be no construction, structures or in-water work associated with the establishment of the danger zone. The establishment of the danger zone by the Corps will not result in the release of contaminants. The operation of the FSAR itself, including the potential environmental impacts caused by rounds fired from the FSAR, falls outside of the Corps' regulatory authorities. Activation of the danger zone itself during small arms training activities would not result in any physical effects to air or water quality, or any physical effects to Haputo Ecological Reserve.

Several commenters expressed concerns about erosion, accretion, and noise associated with the danger zone. One commenter asked whether the danger zone would violate the conditions to the 1983 Memorandum of Understanding with the Government of Guam that created the Haputo Ecological Reserve.

The establishment of the danger zone involves no construction, structures or in-water work associated with the establishment of the danger zone. Therefore, the establishment of this danger zone will not affect erosion, accretion, or noise. In compliance with the Coastal Zone Management Act, the 1983 Memorandum of Understanding committed the Navy to the establishment of two Ecological Reserve Areas (ERAs) as mitigation for the adverse environmental impacts anticipated to accrue from the construction of an ammunition wharf at Adotgan Point in outer Apra Harbor, what has since become known as Kilo Wharf. The two ERAs to be established were the Orate Peninsula Cliff ERA and the Haputo ERA. While there were several conditions associated with the establishment of the Orate Peninsula ERA, none were established for the Haputo ERA aside from the requirement to take “all possible measures” to “preserve its quality for the people of Guam, now and for the future.” It was further stipulated that “it be protected from development of any kind and from the taking or destruction of its natural and historic resources.” At the time the ERA was designated, the FSAR had been in existence for nearly a decade, and it has operated since with little change in frequency or manner of use. There are no changes in the size, location, operation of the range, the type of small arms utilized, or the tempo of operations being proposed. As a result, the establishment of the danger zone would not violate the conditions of the 1983 Memorandum of Understanding with the Government of Guam that created the Haputo ERA.

Multiple commenters asked whether there are practicable alternatives to the establishment of a danger zone and what alternatives were evaluated. A couple commenters asked if there were upland alternatives or if private land or private ranges could be used. One commenter asked if a system could be designed or constructed to prevent ammunition from entering the area of the proposed danger zone whereby a danger zone would not be necessary.

The FSAR has been in existence since 1975, and the establishment of this danger zone is necessary to protect the public during small arms training activities. It was not necessary to evaluate alternative sites because the danger zone is needed at this particular site. As discussed above, the boundaries of the danger zone were established to address the potential area where a small arms projectile could travel, to protect the public during small arms training exercises.

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 “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 rule text governing the danger zone, which allows any vessel that needs to transit the danger zone to expeditiously transit through the danger zone when the small arms range is in use. When the range is not in use, the danger zone will be open to normal maritime traffic and to all activities, include anchoring and loitering.

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 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). The danger zone is necessary to protect public safety during use of the small arms range. To minimize impacts to maritime traffic, the Navy will stop firing when the range is in use to allow vessels to transit through the danger zone. When the range is not in use, the danger zone will be open to normal maritime traffic and all activities, including anchoring and loitering. After considering the economic impacts of this danger zone regulation on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

c. Review Under the National Environmental Policy Act. An environmental assessment (EA) has been prepared for the establishment of this danger zone. The Corps has concluded that the establishment of the danger zone will not have a significant impact to the quality of the human environment and, therefore, preparation of an EIS is not required. The final EA and Finding of No Significant Impact may be reviewed at the District Office listed at 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, 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. The Corps 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

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).

2. Add §  334.1415 to read as follows:

§ 334.1415

Pacific Ocean, adjacent to the Finegayan Small Arms Range at Naval Base Guam Telecommunication Site, on the northwestern coast of Guam; danger zone.

(a) The area. Coordinates are bounded by the following four points: Point A (13°34′57″ N; 144°49′53″ E) following the high tide line to Point B (13°35′49″ N; 144°47′59″ E), Point C (13°34′57″ N; 144°47′45″ E), and Point D (13°34′48″ N; 144°49′50″ E). The datum for these coordinates is NAD-83.

(b) The regulation. (1) Vessels or persons shall expeditiously transit through the danger zone when the small arms range is in use. Vessels shall not be permitted to anchor or loiter within the danger zone while the range is in use. Range activities shall be halted until all vessels are cleared from the danger zone. When the range is not in use, the danger zone shall be open to normal maritime traffic and all activities to include anchoring and loitering.

(2) When the range is in use, the person(s) or officer(s) in charge shall display a red flag from a conspicuous and easily-seen location along the nearby shore to signify that the range is in use and will post lookouts to ensure the safety of all vessels transiting through the area. If the range is in use at night, a strobe light shall be displayed from the same conspicuous and easily-seen location in lieu of flags. The range shall not be used when visibility is equal to or less than the maximum range of the weapons being used at the facility.

(c) Enforcement. The restrictions on public access in this section shall be enforced by the Commander, Joint Region Marianas, and such agencies as the Commander may designate in writing.

Approved:

Thomas P. Smith,

Chief, Operations and Regulatory Division Directorate of Civil Works.