E9-27486. Marine Corps Base Hawaii, Kaneohe Bay, Island of Oahu, HI

AGENCY:

U.S. Army Corps of Engineers, DoD.

ACTION:

Final rule.

SUMMARY:

The U.S. Army Corps of Engineers is amending the regulations at 33 CFR 334.1380 for the existing danger zone in the vicinity of Kaneohe Bay, Hawaii. The amendment reflects the current operational and safety procedures at the Ulupau Crater Weapons Training Range and highlights a change in the hours that weapons firing may occur. The amendment also expands the boundaries of the existing danger zone. These regulations are necessary to protect the public from potentially hazardous conditions which may exist as a result from use of the areas by the United States Marine Corps.

DATES:

Effective date: December 16, 2009.

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 Ms. Susan A. Meyer, Corps of Engineers, Honolulu District, Regulatory Branch, at 808-438-2137 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 334.1380 to reflect current operational and safety procedures at the Ulupau Crater Weapons Training Range, Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of Oahu, Hawaii and highlight a change in the hours that weapons firing may occur. The amendment also provides more detailed times, dates, and extents of restrictions. The dimensions of the danger zone have increased, from the original distance of 3,900 yards from a point on Mokapu Peninsula to 3.8 nautical miles from that same point.

The proposed rule was published in the August 31, 2007, issue of the Federal Register (72 FR 50303) with the docket number COE-2007-0027 and approximately 23 comments were received from 13 commenters. One commenter said that a draft Environmental Impact Report should have been available for public comment at the same time as the proposed rule. Two other commenters requested a copy of the draft EA for review and comment. Another commenter requested clarification on the Corps' authority to amend the danger zone and promulgate regulations at 33 CFR part 334. One commenter objected to the expansion of the danger zone on the basis of potential impacts to sensitive marine wildlife and organisms, including existing designated wildlife protected areas. The same commenter requested that submerged lands surrounding the crater be treated with sensitivity and respect based on the view these areas are ceded lands belonging to the Hawaiian monarchy. Three other commenters stated that the coordinates for Point E of the expanded danger zone do not appear to be correct and one of the three commenters interpreted the proposed rule to amend/expand the prohibited area. Lastly, eight commenters expressed no objections to the proposed amendment.

In the August 31, 2007, proposal the Corps made a preliminary determination that the proposed rule does not require the preparation of an Environmental Impact Statement, and that an environmental assessment would be prepared for the final rule. The regulations governing the National Environmental Policy Act (NEPA) do not require draft environmental assessments to be available for public comment. Federal agencies are only required to solicit public comments during the preparation of Environmental Impact Statements. Given the administrative nature of the proposed rule and the substance of the comments received, we have determined that an environmental assessment is the appropriate mechanism for complying with NEPA requirements. Public input on the proposed action was solicited using Federal Register noticing and local public noticing. Public comments received in response to the notices were documented and fully considered during final agency decision making.

Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Act of 1918 (40 Stat. 892; 33 U.S.C. 3) grant authority to the Secretary of the Army to establish danger zones and to regulate navigation within them for the protection of life and property.

The danger zone represents a public safety buffer beyond the physical boundaries of the training range to further reduce the safety threat to the boating public. The geographical nature of the crater combined with the use of man-made measures makes the crater secure from unintended projectiles exiting its confines, although a very slight possibility exists that a projectile could ricochet or otherwise be inadvertently fired beyond the confines of the crater. Under current conditions, sensitive wildlife areas, including designated protected areas, are encompassed within the existing boundaries of the danger zone. Since munitions are not intentionally fired into waters surrounding Ulupau Crater and the probability of an unintended projectile exiting the crater is negligible, an expanded danger zone will not incrementally change, modify or otherwise adversely impact sensitive marine species and organisms that inhabit or are supported by the waters and protected areas occurring within the danger zone. Marine resources, including endangered species, migratory shorebirds, and other seabirds that occupy designated protected areas will remain adequately protected by the MCBH under obligations of pre-existing agreements. For similar reasons, submerged lands will not be directly or indirectly adversely affected by the expanded danger zone.

The coordinates for Point E of the danger zone were not correct in the proposed rule, and in the final rule we have eliminated Point E altogether. In the final rule the amended danger zone is defined by a reduced number of coordinates, from six points (Points A, B, C, D, E and the starting point) to four points (Points A, B, C and the starting point). The boundaries of the amended danger zone form a pie-shaped area with an arc having a 3.8 nautical-mile radius at its center point (Point B). When compared to the irregularly shaped area described in the proposed rule, this modified configuration is less problematic to monitor and patrol, and is less complicated for the boating public to interpret and chart. The reduced number of coordinates and minor changes to the configuration simplify the boundaries of the danger zone, but do not appreciably change the overall size of the amended danger zone as it was depicted in the proposed rule. The amended danger zone is defined by three points extending seaward a distance of 3.8 nautical miles between radial lines bearing 357.1° true and 124.9° true, respectively, from a starting point on Mokapu Peninsula at latitude 21° 27′ 11.84″ N, longitude 157° 43′ 53.83″ W. The three seaward points are as follows:

Point A: Latitude 21°30′59.66″ N, Longitude 157°44′05.97″ W

Point B: Latitude 21°29′16.58″ N, Longitude 157°40′30.19″ W

Point C: Latitude 21°25′01.79″ N, Longitude 157°40′33.70″ W

The prohibited area is defined as a 500-yard wide zone within the waters of Kaneohe Bay contiguous with the shoreline of the MCBH, which remains off limits to the public for military security and public safety. While a portion of the amended danger zone overlaps the existing prohibited area, the 500-yard wide prohibited area will not expand or otherwise change as a result of this action.

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 is closed and considered all comments received on the public notice. 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 § 334.1380 to read as follows:

§ 334.1380

Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of Oahu, Hawaii—Ulupau Crater Weapons Training Range; danger zone.

(a) The danger zone. The area within a sector extending seaward a distance of 3.8 nautical miles between radial lines bearing 357.1° true and 124.9° true, respectively, from a starting point on Mokapu Peninsula at latitude 21°27′11.84″ N, longitude 157°43′53.83″ W, and overlapping the existing 500-yard wide prohibited area. The danger zone is defined as a pie-shaped area bounded by the landward starting point on Mokapu Peninsula and the three seaward points forming an arc with a 3.8 nautical-mile radius at its center (Point B) with a radial line bearing 56.9° true. The three seaward points have the following coordinates:

Point A: Latitude 21°30′59.66″ N, Longitude 157°44′05.97″ W

Point B: Latitude 21°29′16.58″ N, Longitude 157°40′30.19″ W

Point C: Latitude 21°25′01.79″ N, Longitude 157°40′33.70″ W

(b) The regulations. (1) Weapons firing at the Ulupau Crater Weapons Training Range may occur at any time between 6 a.m. and 11 p.m., Monday through Sunday. Specific dates and hours for weapons firing, along with information regarding onshore warning signals, will be promulgated by the U.S. Coast Guard's Local Notice to Mariners. Information on weapons firing schedules may also be obtained by calling the MCBH Range Manager, AC/S G-3 (telephone number 808-257-8816/17).

(2) Whenever live firing is in progress during daylight hours, two large red triangular warning pennants will be flown at each of two highly visible and widely separated locations on the shore at Ulupau Crater.

(3) Whenever any weapons firing is scheduled and in progress during periods of darkness, flashing red warning beacons will be displayed on the shore at Ulupau Crater.

(4) Boaters will have complete access to the danger zone whenever there is no weapons firing scheduled, which will be indicated by the absence of any warning flags, pennants, or beacons displayed ashore.

(5) The danger zone is not considered safe for boaters whenever weapons firing is in progress. Boaters shall expeditiously vacate the danger zone at best speed and by the most direct route whenever weapons firing is scheduled. Passage of vessels through the danger zone when weapons firing is in progress will be permitted, but boaters shall proceed directly through the area at best speed. Weapons firing will be suspended as long as there is a vessel in the danger zone. Whenever a boater disregards the publicized warning signals that hazardous weapons firing is scheduled, the boater will be personally requested to expeditiously vacate the danger zone by MCBH Kaneohe Bay military personnel utilizing by hailing the vessel on VHF channel 16 or contacting directly by U.S. Navy surface craft.

(6) Observation posts will be manned whenever any weapons firing is scheduled and in progress. Visibility will be sufficient to maintain visual surveillance of the entire danger zone and for an additional distance of 5 miles in all directions whenever weapons firing is in progress.

(c) The enforcing agency. The regulations shall be enforced by the Commanding Officer, MCB Hawaii, Kaneohe Bay and such agencies as he/she may designate.

Dated: November 5, 2009.

Michael G. Ensch,

Chief, Operations, Directorate of Civil Works.