Pacific Ocean at Marine Corps Base, Camp Blaz, Mason Live-Fire Training Range Complex, on the North Coast of Guam; Danger Zone, 56208-56213 [2021-21981]
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Federal Register / Vol. 86, No. 193 / Friday, October 8, 2021 / Rules and Regulations
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 334
[COE–2020–0015]
Pacific Ocean at Marine Corps Base,
Camp Blaz, Mason Live-Fire Training
Range Complex, on the North Coast of
Guam; Danger Zone
U.S. Army Corps of Engineers,
Department of Defense (DoD).
ACTION: Final rule.
AGENCY:
The Corps of Engineers
(Corps) is amending its regulations to
establish a danger zone in the Pacific
Ocean adjacent to the Mason Live-Fire
Training Range Complex at Marine
Corps Base, Camp Blaz on the north
coast of Guam. The danger zone is
located entirely within the Pacific
Ocean, comprising 3,660 acres and
extending approximately 2.8 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
range is in active use in order to ensure
public safety.
DATES: Effective date: November 8,
2021.
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
David.B.Olson@usace.army.mil or 202–
761–4922.
SUPPLEMENTARY INFORMATION: In
response to a request by the United
States Marine Corps, 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 Mason Live-Fire
Training Range Complex (LFTRC) on
Guam. The danger zone regulation will
be added at 33 CFR 334.1425. The
danger zone is needed for the
Department of Defense to meet its
mission under 10 U.S.C. 5063, which is
to maintain, train, and equip combatready military forces, deter aggression,
and maintain freedom of the seas. Due
to the strategic location of Guam and the
Department of Defense’s relocation of
Marines from Okinawa to Guam, there
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SUMMARY:
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will be an increased need for training
and testing areas on Guam. The
construction of the Mason LFTRC and
its associated danger zone are designed
to meet this increased need. 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 October 29,
2020 (85 FR 68507). The regulations.gov
docket number is COE–2020–0015.
Concurrently, a local public notice for
the proposed danger zone was sent out
from the Corps’ Honolulu District. In
response to the proposed rule, 89
comments were received. Two
commenters were in support of
establishing the danger zone. The
remaining 87 comments are summarized
below with the Corps’ responses to
those comments.
Four commenters requested either a
public hearing with the Corps or public
meetings with representatives of the
Navy and/or the Corps. The commenters
requested these meetings to better
understand the impacts of the Mason
LFTRC and the proposed danger zone,
and to have an open dialogue and
discussion. Some commenters requested
additional time to comment on the
public notice and said that multiple
comment periods should be conducted.
One commenter stated that a mailing list
should be set up for people who wish
to be sent public notices directly for
similar proposals.
The Corps determined that 30 days
was sufficient to provide comments on
the proposed danger zone regulation.
The Corps reviewed all of the requests
for a public hearing or public meetings
as well as the comments received in
response to the proposed rule. As stated
in the Corps’ regulations at 33 CFR
327.3(a), a public hearing is to be held
‘‘for the purpose of acquiring
information or evidence’’ to be
considered in the Corps’ decision for a
proposed action. The Corps determined
that the record for this rulemaking
action, including the public comments
received in response to the proposed
rule, contains adequate information
regarding public concerns about the
proposed danger zone and that a public
hearing was not necessary. Public
hearing denial letters were sent by the
Honolulu District to each requestor on
January 14, 2021.
Many commenters stated that no map
was available and that they could not
provide substantive comments without
knowing the geographic limits of the
proposed danger zone. A few
commenters requested clarification on
the times the range would be used or
recommended that the rule specify the
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exact times the range would be in use
and danger zone activated. One person
said that the Corps had incorrectly
calculated the amount of time the area
of the danger zone would be closed to
navigation.
The Corps provided a map with the
district public notice, which was posted
on the Corps’ website, the Marine Corps
Base Camp Blaz (MCBCB) website, and
by multiple news outlets in print and on
their respective websites. Additionally,
the proposed rule that was published in
the Federal Register and the district
public notice both contained
coordinates for the proposed danger
zone, as well as a narrative location
description suitable to inform public
comments. Upon review of the map
provided with its public notice, the
Corps discovered an error in mapping.
The map showed the danger zone
extending shoreward of the mean high
water line. This is incorrect. As stated
in the aforementioned narrative
description, the danger zone would
follow the mean high water line of the
Pacific Ocean and would not extend
shoreward of this line. A new map has
been made which corrects this and
shows that the danger zone extends
seaward of the mean high water line.
The times proposed for the danger
zone to be active were provided in the
proposed rule. The exact days of the
week during which live fire exercises
would occur are at the discretion of the
Marines in accordance with their
training requirements. Those training
requirements may change over time.
The Marines will have a strategic
communication plan (COMMSTRAT)
for alerting the public to future range
use. This plan includes posting the
schedule on their website, having a
public hotline for questions concerning
range operations, and issuing Notices To
Mariners (NTM). Concerning the
comment about miscalculating the total
amount of closure times, the Corps did
not provide a total amount of training
days the danger zone would be activated
because training sessions are to be
scheduled in the future. Also, the total
number of training days is not relevant
to this rulemaking action because the
Marines establish the training schedules
and those training schedules fall outside
of the Corps’ authority to issue
regulations to establish danger zones.
Concerning the requests for extension
of the comment period for the proposed
rule, the Corps disagrees that additional
time is necessary. The Corps provided
sufficient time for interested parties to
provide their comments on the
proposed rule. For most proposed
danger zone and restricted area
regulations, the Corps provides a 30-day
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comment period. The Corps agrees that
a mailing list should be available to
people who wish to be alerted of public
notices. The Honolulu District mailing
list can be found at https://
www.poh.usace.army.mil/Missions/
Regulatory/Public-Notices/.
Several commenters stated that the
proposed danger zone should be
evaluated through the preparation of an
environmental impact statement (EIS).
Some commenters stated that an EIS
should be prepared because of the lack
of economic analysis or because they
believe that the danger zone would have
a significant impact on the quality of the
human environment. One commenter
said that specific sections of the
environmental assessment should be
referenced and stated that the public
notice was incomplete. Another
commenter said that the Corps was
placing the responsibility on the public
to provide the analysis of impacts.
Several commenters said that the
establishment of the danger zone is a
significant regulatory action. Some
commenters requested consultation
documents for Section 7 of the
Endangered Species Act, the essential
fish habitat provisions of the MagnusonStevens Fishery Conservation and
Management Act, Section 106 of the
National Historic Preservation Act, and
the Coastal Zone Management Act so
that they could comment on the
completeness of those consultations.
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 that would establish the danger
zone. After evaluating the comments
received in response to the proposed
rule, 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’ Honolulu District office.
The establishment of this danger zone
will not result in work, structures, or
any construction within the Pacific
Ocean, or any modification to any
vegetation, habitat, or structures in the
Pacific Ocean, on the shore, or on the
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land. Therefore, the Corps Federal
action, which is the establishment of
this danger zone, 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 Mason LFTRC. The
boundaries of the danger zone will be
plotted by National Oceanic and
Atmospheric Administration (NOAA)
on its nautical charts, which will help
alert users of those navigable waters to
the presence of the danger zone, and to
the text of the regulations governing that
danger zone.
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, in its NEPA
documentation for the rulemaking to
establish the danger zone, the Corps is
not required to address the potential
future establishment of a Marine Corps
base on Guam. Because the danger zone
will be in effect only when the range is
in use, the establishment of the danger
zone will promote public safety, and
impacts to the human environment
caused by the establishment of the
danger zone have been minimized.
Vessel operators and fishers can use the
navigable waters within the danger zone
when the danger zone is not activated
for live fire training exercises. The
Corps has determined there is no need
or requirement for mitigation beyond
incorporating measures into the
regulation governing the danger zone to
minimize impacts to maritime traffic
and fishing activities. The Corps
determined that this rulemaking action
is not a significant regulatory action
under Executive Order 12866 because it
does not trigger any of the four
significance thresholds identified in that
Executive order.
At Marine Corps Base Camp Blaz, 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 Navy’s 2015
Final Supplemental Environmental
Impact Statement (SEIS) for the Guam
and Commonwealth of the Northern
Mariana Islands Military Relocation.
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A couple of commenters said that the
Corps does not have the authority to
establish the danger zone. One of these
comments was specific to Chamoru
lands and the other comment pertained
to the area shoreward of waters of the
United States. Some commenters stated
that specifics on land restrictions
should be made clear and studied for
how these restrictions would affect
cultural and historic sites. One
commenter said that the restrictions
were arbitrarily decided upon.
The Corps’ authority for establishing
danger zones is provided in Chapter
143, Subchapter XIX of the Army
Appropriations Act of 1919 (40 Stat 892;
33 U.S.C. 3). The Corps agrees that it
does not have the authority to establish
danger zones in uplands landward of
the mean high water line. The danger
zone does not extend into areas
landward of the mean high water line.
Therefore, there will be no land
restrictions caused by the establishment
of this danger zone. With respect to the
comment asserting that the restrictions
were arbitrarily decided, the Corps
disagrees that the decision was
arbitrary. The Marines conducted
extensive studies on the ballistics of
weapons to be fired at the Mason
LFTRC. The design of each range further
limited the space in navigable waters
needed for the danger zone. The
Marines requested that the danger zone
be comprised of two areas to close off
the smallest amount of area necessary
for specific training sessions, to
minimize impacts to the public’s use of
navigable waters.
A couple of commenters asked about
the consequences of entering the danger
zone and requested information
regarding how the public could inform
the Marines if someone violated the
danger zone. These commenters said
there is a need for public outreach and
education on the use of the danger zone.
Concerning potential consequences
for entering the danger zone while it is
being used for small arms training, the
most immediate consequence would be
the potential for being struck by bullets,
which on rare occasions may ricochet
beyond the range’s containment berms.
This safety hazard is the reason for the
establishment of this danger zone,
which is to help provide for public
safety when the range is in use. If a
person, vessel, watercraft, etc. enter the
danger zone without authorization,
MCBCB Range Control will notify the
U.S. Coast Guard for action. Concerning
how the public can notify the Marines
if someone appears to violate the danger
zone regulation, notification of alleged
violations of the danger zone regulation
can be provided to the MCBCB Range
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Control, U.S. Coast Guard, or by calling
911. The Corps agrees that public
outreach and education on the danger
zone can help provide for the safety of
the public. The Marines’ COMMSTRAT
will establish a method of public
notification that will provide a snapshot
of the range utilization calendar. Once
the MCBCB Range Control Facility is
established it will have a phone number
for public inquiries. Additionally, the
Marines will issue NTMs prior to active
live fire training exercises and the
danger zone will be depicted on
applicable NOAA nautical charts.
Many commenters said that that the
establishment of the danger zone would
have negative impacts on local fishers.
One commenter asserted that the danger
zone would deprive the people of Guam
of their traditional fishing activities.
One commenter stated that the danger
zone would deny growth and
development for the people Guam.
Other commenters noted that the
impacted fishers would no longer be
able to sell fish at local markets to
support their families. A few
commenters said that the federal
government is taking too much of
Guam’s waters and submerged lands.
The establishment and use of the
danger zone would restrict access to
navigable waters within the danger zone
only during small arms training
exercises. Those navigable waters will
be available for fishing when the Mason
LFTRC is not being used for small arms
training. The Marines have included a
two-tiered approach to ensure that the
least amount of area of navigable waters
is restricted during live fire training,
thus reducing the amount of closure
time in the larger area. Practicing
traditional, commercial, or recreational
fishing in this area would continue to be
allowed when the danger zone is not
activated. Establishment of the danger
zone would not prevent local fishers
from being able to catch and sell fish at
local markets. The danger zone is
located over federally owned submerged
lands and would not require the
acquisition of any lands, submerged or
otherwise. The Corps’ regulations
require that danger zones and restricted
areas provide public access to the
affected areas 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). This final rule
complies with that regulation.
One commenter said that 15 to 20
vessels run through these waters each
day and that it is a popular area for
many types of fish. Another commenter
stated that the danger zone would result
in the loss of some of the best waters for
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fishermen. Other commenters said that
this danger zone is within prime trolling
and bottom fishing grounds used by
many boaters and that any restriction
would be unreasonable. Another
commenter said that fishers would not
be able to fish when particular fish are
running or in migration with good sea
conditions.
Offshore fishing areas located within
the danger zone would not be allowed
when the range is in use. Recreational
boating and fishing would be permitted
within the danger zone when live-fire
training is not being conducted at the
range. To provide for their safety, fishers
and recreational boaters cannot enter
the danger zone when live firing
exercises are being conducted. All live
fire training will cease if watercraft
inadvertently enter the danger zone and
training would resume once the vessel
has cleared the danger zone. When live
fire training is occurring, fishers and
recreational boaters will need to
navigate around the danger zone.
As stated in the Navy’s 2015 SEIS,
approximately 65% of fishing trips
occur on the weekends and 35% of
fishing trips occur on weekdays.
Training at the Mason LFTRC will
typically occur on weekdays when
fewer vessels would potentially be
transiting the danger zone. However,
periodic weekend use of the Mason
LFTRC could occur as needed. To
provide awareness of times that the
range is in use, the Marines will provide
the proposed training schedule to the
U.S. Coast Guard, who will issue and
broadcast NTMs that would identify the
danger zone as being in active use and
direct vessel operators to navigate clear
of the active danger zone. Additionally,
boaters and fishers will be able to
contact range control via radio or phone
to get real time updates of active use of
the Mason LFTRC, which will also
minimize impacts on vessel operators.
This communication will allow boaters
to transit the danger zone during
scheduled training days when the range
is temporarily inactive. Range lookouts
will scan the active area prior to and
during live-fire training sessions to
ensure that there are no vessels within
or approaching the danger zone. If
vessels are at risk of entering the active
area, use of the range would be
suspended until the vessel leaves the
danger zone.
A few commenters said that
restrictions of the navigable waters for
up to 75% of the year is too great for
local fishers. A couple of commenters
stated that if the danger zone is
established it should be active fewer
days out of the year to ensure that main
fishing seasons are not impacted. One
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commenter asserted that due to the
amount of time the Marines could
restrict access to the danger zone, the
entire fishing community would be at
the mercy of the Marines’ training
schedule.
The proposed rule did not include
estimates of the number of training days
expected to occur during a typical year
because the number of training days
may vary from year-to-year. In response
to these comments the Marines clarified,
through Marine Corps Order 3550.10,
that their standard for range availability
is 242 days per calendar year, and that
their annual goal is to utilize each range
for at least 70 percent of the available
days per year, or 169 days if the range
is available the entire 242 days.
Therefore, if the Mason LFTRC meets
the goal of 169 days per year then the
active areas of the danger zone would be
restricted intermittently for 24 weeks.
Additionally, for the larger of the two
areas (Area 1), the danger zone would be
activated only for training on larger
caliber weapons, which would occur
with less frequency. As stated above,
fishing activities can occur in navigable
waters within the danger zone when the
danger zone is not in use for live firing
exercises.
A few commenters said that the
danger zone would result in fishing
restrictions that affect the local
economy. A few commenters stated that
some fishers use these waters to sustain
their families and that the activation of
the danger zone would limit their ability
to feed themselves. Another commenter
asked whether the timing of range
activities could adjusted to reduce
impacts during fishing seasons. One
commenter suggested that the Marines
provide mitigation for impacts to fishing
in the form of placing new Fish
Aggregating Devices (FADs), assisting
the Guam government in maintaining
existing FADs, and/or conducting
harbor maintenance around the island.
The Corps acknowledges that the
establishment and use of the danger
zone will have some impacts on fishing
activities but determined that these
impacts would not unreasonably
interfere with or restrict the food fishing
industry. The establishment of the
danger zone is necessary for public
safety, including the safety of fishers
that may fish in the waters within the
danger zone. Fishers may utilize these
waters for fishing activities when the
danger zone is not activated for live
firing training sessions. When the
danger zone is activated, fishers may
utilize navigable waters outside of the
danger zone for fishing activities. As
discussed in the Navy’s 2015 SEIS, the
Marines have committed to work with
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fishing community leaders and
members to ensure the greatest
practicable consideration is given to
measures that would minimize or offset
concerns about fishing impacts due to
the regulations governing the danger
zone. The Corps has determined that the
establishment of the danger zone would
not require any compensatory
mitigation, such as the installation of
new FADs or the maintenance of
existing FADs.
The Corps’ regulations also require
the Corps to consult with the Regional
Directors of the U.S. Fish and Wildlife
Service and National Marine Fisheries
Service regarding potential impacts to
the food fishing industry. The Corps’
Honolulu District sent each agency a
letter dated January 18, 2021, requesting
comments in relation to the food fishing
industry. Neither agency responded to
those letters.
Many commenters expressed
opposition to the proposed danger zone
because it would restrict recreational
access to the waters and coastline. One
commenter said that the beaches of
Ritidian should be open to the public.
A commenter stated that establishing
the danger zone would result in beach
closures for nine consecutive months.
One commenter said that they visit
Ritidian every week and the danger
zone would limit their access to the
beach to only several days a year. A
number of commenters indicated that
the danger zone would restrict access to
upland areas, including public and
private lands.
The Corps acknowledges that the
danger zone will restrict access to
navigable waters within the danger zone
while training activities are conducted.
However, these restrictions will be
intermittent and they are necessary for
public safety. The establishment of the
danger zone would not deny
recreational access to waters and the
coast. The danger zone would only
restrict recreational access to certain
navigable waters for the purposes of
safety within the designated areas of the
danger zone. Among the ranges within
the Mason LFTRC, the Multi-Purpose
Machine Gun Range has the largest
danger zone (Area 1) and is the only one
that would preclude access to a portion
of the publicly accessible areas of the
Ritidian Unit of the Guam National
Wildlife Refuge. When other ranges in
the Mason LFTRC are in use, the danger
zone (Area 2) would not restrict access
to the publicly accessible portion of the
Ritidian Unit of the Guam National
Wildlife Refuge. The Navy has an
agreement with the Guam National
Wildlife Refuge to establish new
recreational areas to the west of the
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existing refuge and completely outside
of the boundaries of the danger zone.
When completed, this area will ensure
public access year-round.
The establishment of the restricted
area would not limit public access to the
beaches to several days during the year.
The danger zone would allow access
several days of each week of the year.
The danger zone would only limit
access to waters that are seaward of the
mean high water line. The
establishment of the danger zone would
not restrict access to any upland areas.
Also, the Mason LFTRC’s design was
the only option that could be completed
entirely on federal lands. Therefore,
there would be no restrictions to private
property as a result of the establishment
of the danger zone.
Many commenters expressed
concerns about cultural and historic
resources impacted by the construction
of the firing range. Some commenters
stated that the government was taking
historic lands and destroying resources.
Other commenters stated that the
impacts to historic properties should
not be allowed.
The Corps’ authority is limited to
issuing regulations for the establishment
of the danger zone, which will not cause
any physical alteration of the
environment. The establishment of the
danger zone will not result in effects to
cultural and historic resources. Impacts
to cultural and historic resources caused
by the construction of the base are
separate from the Corps’ establishment
of the danger zone through the
rulemaking process. The establishment
of the danger zone is an administrative
process, and is an undertaking of a type
that does not have the potential to cause
effects on historic properties, cultural
resources, or sacred cultural sites. The
danger zone is located entirely in waters
of the Pacific Ocean. The establishment
of the danger zone involves no
construction, structures, or in-water
work. The Corps acknowledges that
when the range is in use, there will be
temporary impacts to access of
traditional fishing grounds, and those
impacts are discussed above.
A few commenters asked about the
efficacy of red flags and lights for
notification of an active firing range.
One commenter said that it is not clear
how the public would know which
range area was active. Another
commenter stated that protocols should
be in place beyond issuing NTMs to
inform boaters and the public about
range activities. A few commenters
asked how the danger zone would be
enforced and if protocols would be in
place to ensure boaters do not enter the
danger zone during training sessions. A
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couple of commenters expressed
concern about how the coastline would
be managed to prevent swimmers,
fishers, divers, and others from
accessing the danger zone during live
fire exercises. Commenters also voiced
concerns about how the public could
notify the Marines if they observed a
vessel or person in the danger zone
during life firing exercises. Finally,
some commenters stated concerns over
smaller craft having to travel around the
danger zone and having to enter more
tumultuous waters to reach fishing
areas.
Similar to navigation lights or aids on
buoys and approach lighting for
airfields, the red lights used for
nighttime fire would be visible under all
weather conditions that would be
conducive to small boat and small arms
range operations. The red flag (daytime
fire) method of identifying an active
danger zone is currently in use at the
Finegayan Range, as well as the Naval
Base Guam Known Distance and MultiPurpose Ranges, and has proven to be
an effective method of alerting the
public of small arms range operation.
The public would be informed as to
which area is being used through NTMs,
or by viewing the range schedule which
will be posted on the MCBCB website.
The public may also contact the hotline
for range control to be set up by the
Marines. The Marines’ COMMSTRAT
plan also includes future education and
outreach to the public on the danger
zone, and will include graphics and
posters displayed at strategic locations
across the island to better inform the
public.
Prior to the activation of any range for
live fire training, range inspectors will
physically inspect the beach to ensure
members of the public are not present
near the danger zone. Military personnel
will provide oversight and advise the
public of danger zone restrictions. Road
guards will have radio communications
with MCBCB Range Control. The waters
of the danger zone will be monitored by
radar inside MCBCB Range Control.
MCBCB Range Control will notify the
U.S. Coast Guard of the presence of
vessels in the danger zone so that the
U.S. Coast Guard can take appropriate
action. In additional, MCBCB Range
Control would notify each range to
cease fire until the U.S. Coast Guard
removes the vessels or the vessels
expeditiously exit the danger zone. The
public may notify MCBCB Range
Control of vessels entering the danger
zone via the hotline that will be
established, by contacting MCBCB
directly, or by dialing 911.
The Corps acknowledges that to avoid
the active danger zones, vessels may
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have to travel into deeper waters that
are further off the coastline. Prior to
leaving, these boaters would be notified
when the range will be active via NTMs
and the other outreach tools discussed
above. Those vessel operators can plan
their trips to avoid active live fire
exercises.
Many commenters stated concerns to
land clearing, impacts to the local
aquafer, adverse effect to plants and
animals, and potential pollution from
construction of the Mason LFTRC and
its use. Other commenters expressed
concern with how the range would
affect threatened or endangered species.
One commenter asked how the rounds
fired would be collected and the area
cleaned while other commenters were
concerned with how the discharge of
metals would affect the local water
supply.
Establishing the danger zone is an
administrative process that would have
no direct or indirect adverse effects on
the environment. Similarly, the
establishment of the danger zone would
have no effect on threatened and
endangered species or designated
critical habitat or result in the alteration
of any natural resources. The impacts
caused by the construction of the base,
including the Mason LFTRC, and any
other potential impacts shoreward of the
mean high water line are beyond the
purview of this rulemaking action.
Many commenters said that this
danger zone should not be established at
Ritidian because other existing ranges
and their respective danger zones
should be used instead. Other
commenters suggested that there are
other areas on the island to build the
ranges. A few commenters said that it is
not possible to have the range and
danger zone completely on land.
The Mason LFTRC was designed to
meet the specific training needs of the
Marines. Other ranges on the island
were built for different purposes and
needs and do not meet the needs of the
Marines. In addition, in its 2015 SEIS,
the Navy analyzed five different options
including the use of other ranges. The
construction of the Mason LFTRC was
the only option of the five that could be
accomplished solely on federally owned
lands. This danger zone is the only
option for the Mason LFTRC currently
under construction and it must be over
the water.
One commenter stated that an
alternative would be to establish more
stringent requirements for advanced
notice to the public. This commenter
suggested a minimum 72-hour notice
that would allow locals to better plan
their recreational or cultural activities in
the Ritidian. Two commenters suggested
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limiting the days that small arms
training is conducted. One commenter
said that the danger zone should be
reduced in size to provide more access
to navigable waters.
The Corps acknowledges the benefits
of increased communication and
advance notice of range operations. The
regulations do not specify the time limit
for issuing an NTM, and the Corps does
not have the authority to impose such
a time limit. The Marines have agreed
to issue NTMs no later than 24 hours in
advance to allow for maximum
flexibility for use of the firing range.
Additionally, a range schedule will be
posted on the MCBCB website. The
Marines’ COMMSTRAT will establish a
method of public notification that will
provide a snapshot of the range
utilization calendar, and the Marines
will establish a phone number for
public inquiries. While limiting training
sessions may result in the danger zone
being activated less often, it is up to the
Marines to determine their training
requirements.
The Marines have limited the danger
zone to the minimum size required to
ensure public safety when the ranges are
active. The Marines have requested two
separate areas within the danger zone:
Area 1, which is 3,660 acres in size, and
Area 2, which is 1,425 acres in size.
Area 2 is 40% the size of Area 1 and
would be activated for smaller caliber
weapons training on the more
frequently used ranges. Area 1 would be
activated fewer times than Area 2
because the larger caliber weapons
would be trained on less frequently. The
Corps has determined that the approach
of designating two areas within the
danger zone will be less restrictive to
the public and will provide greater
access to the public while ensuring
public safety during live-fire training
exercises.
Procedural Requirements
a. Regulatory Planning and Review.
This final rule is not a ‘‘significant
regulatory action’’ under Executive
Order 12866 (58 FR 51735, October 4,
1993) and it was not submitted to the
Office of Management and Budget for
review.
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 for 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
PO 00000
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Fmt 4700
Sfmt 4700
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 Mason
LFTRC. To minimize impacts to
maritime traffic, the Marines have
designed a two-tiered approach for the
danger zone to ensure that the least
amount of area is restricted during
training sessions. Fishers and other
boaters can utilize navigable waters
outside of the danger zone when the
danger zone is activated for live firing
exercises. When the range is not in use,
the danger zone will be open to normal
maritime traffic and all activities,
including fishing, 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. Under Section 203 of the Act, the
Corps has also found 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. 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).
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Federal Register / Vol. 86, No. 193 / Friday, October 8, 2021 / Rules and Regulations
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 § 334.1425 to read as follows:
jspears on DSK121TN23PROD with RULES1
§ 334.1425 Pacific Ocean adjacent to the
Mason Live-Fire Training Range Complex
located at U.S. Marine Corps Base, Camp
Blaz, on the northwestern coast of Guam;
danger zone.
(a) The areas. The danger zone will
consist of two areas: An outer area (Area
1) for larger caliber weapons and a
smaller area (Area 2) for smaller caliber
weapons that is set within Area 1. The
datum for the coordinates in this section
is NAD–83.
(1) Area 1. The waters bounded by the
following seven points: Point A
(13°38′59.443″ N; 144°51′11.522″ E)
following the mean high water line to
Point B (13°38′36.722″ N;
144°52′50.256″ E), following the mean
high water line to Point C
(13°38′33.936″ N; 144°52′53.031″ E),
Point D (13°40′8.336″ N; 144°53′44.876″
E), Point E (13°40′56.842″ N;
144°53′42.808″ E), Point F
(13°41′28.434″ N; 144°52′37.582″ E), and
Point G (13°41′3.344″ N; 144°51′53.652″
E).
(2) Area 2. A subset of waters within
Area 1 bounded by the following six
points: Point A (13°39′7.432″ N;
144°52′8.210″ E) following the mean
high water line to Point B
(13°38′36.722″ N; 144°52′50.256″ E),
following the mean high water line to
Point C (13°38′33.936″ N;
144°52′53.031″ E), Point D
(13°39′54.724″ N; 144°53′37.400″ E),
Point E (13°40′25.737″ N;
144°52′43.157″ E), and Point F
(13°40′6.494″ N; 144°52′7.349″ E).
(b) The regulation. (1) The enforcing
agency will designate which area will be
closed for use on dates designated for
live fire. No persons, watercraft, or
vessels shall enter or remain in the area
during the times designated for live fire
except those authorized by the enforcing
agency. All live-fire training will cease
if a person, watercraft, or vessel
inadvertently enters the designated area
and may resume once they have cleared
the danger zone. The Installation Range
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16:15 Oct 07, 2021
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Control Officer will be responsible for
submitting all local Notices to Mariners
for specific dates of firing, which will be
disseminated through the U.S. Coast
Guard and on the Marine Corps Base
Camp Blaz website. The area will be
open to normal maritime traffic when
the range is not in use.
(2) When the range is in use red flags
will be displayed from conspicuous and
easily seen locations on the east and
west boundaries of the danger zone to
signify that the range is in use. These
flags will be removed when firing ceases
for the day.
(3) During the night firing, red lights
will be displayed on the east and west
sides of the danger zone to enable safety
observers to detect vessels that may
attempt to enter the danger zone. All
range flags and red lights will be visible
from 360 degrees. Due to the depth of
the ocean the danger zone will not be
marked with buoys.
(c) Enforcement. The restrictions on
public access through the danger zone
shall be enforced by the Commander,
Marine Corps Base, Camp Blaz, and
such agencies as the Commander may
designate in writing.
Alvin B. Lee,
Director of Civil Works.
[FR Doc. 2021–21981 Filed 10–7–21; 8:45 am]
BILLING CODE 3720–58–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Parts 3 and 36
RIN 2900–AR26
Assistance to Eligible Individuals in
Acquiring Specially Adapted Housing
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is amending its
adjudication and loan guaranty
regulations regarding eligibility and
assistance for certain veterans and
members of the Armed Forces in
acquiring specially adapted housing
assistance. The amendments are
necessary to implement certain
provisions of the Ryan Kules and Paul
Benne Specially Adaptive Housing
Improvement Act of 2019.
DATES:
Effective date: This rule is effective
November 8, 2021.
Applicability dates: The amendments
to 38 CFR 3.809, 3.809a, and 36.4404
shall apply to all applications for
benefits that were or are received by VA
on or after August 8, 2020, or that were
SUMMARY:
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
56213
pending before VA (including the Board
of Veterans’ Appeals), the United States
Court of Appeals for Veterans Claims, or
the United States Court of Appeals for
the Federal Circuit on August 8, 2020.
The amendments to 38 CFR 36.4402,
36.4403, and 36.4406 shall apply to all
applications for benefits that were or are
received by VA on or after October 1,
2020, or that were pending before VA
(including the Board of Veterans’
Appeals), the United States Court of
Appeals for Veterans Claims, or the
United States Court of Appeals for the
Federal Circuit on October 1, 2020.
FOR FURTHER INFORMATION CONTACT:
Terry Rouch, Assistant Director for Loan
Policy and Valuation, Loan Guaranty
(26), Veterans Benefits Administration,
Department of Veterans Affairs, 810
Vermont Ave. NW, Washington DC
20420, (202) 632–8862. (This is not a
toll-free telephone number.)
SUPPLEMENTARY INFORMATION: The
President signed into law the Ryan
Kules and Paul Benne Specially
Adaptive Housing Improvement Act of
2019 (the Act), Public Law 116–154, 134
Stat. 690, on August 8, 2020. The Act
amended certain provisions of 38 U.S.C.
chapter 21, Specially Adapted Housing
for Disabled Veterans.
Chapter 21 authorizes VA to provide
specially adapted housing (SAH)
assistance to eligible individuals with
certain service-connected disabilities.
Eligible individuals can include
veterans and members of the Armed
Forces. 38 U.S.C. 2101A. SAH
assistance can be used toward the
purchase, construction, or adaptation of
a home that suits the individual’s living
needs. 38 U.S.C. 2102. It can also be
used to reduce the debt associated with
the costs of acquiring a home that is
already adapted. Id. The amount of SAH
assistance available to an eligible
individual varies depending on factors
such as the nature of the individual’s
disability, the scope of the eligible
individual’s project, and the amounts of
SAH assistance the eligible individual
has already received.
I. Amendments Under Section 2 of the
Act
Section 2 of the Act, which became
effective upon enactment, amended 38
U.S.C. 2101(a) and (b) to change SAH
eligibility for individuals with blindness
in both eyes. Previously, the Secretary
could provide such an individual with
assistance under section 2101(a) if the
individual had a permanent and total
service-connected disability due to
blindness in both eyes having only light
perception, plus loss or loss of use of
one lower extremity. Alternatively, the
E:\FR\FM\08OCR1.SGM
08OCR1
]]>Agencies
[Federal Register Volume 86, Number 193 (Friday, October 8, 2021)]
[Rules and Regulations]
[Pages 56208-56213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21981]
[[Page 56208]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 334
[COE-2020-0015]
Pacific Ocean at Marine Corps Base, Camp Blaz, Mason Live-Fire
Training Range Complex, on the North Coast of Guam; Danger Zone
AGENCY: U.S. Army Corps of Engineers, Department of Defense (DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Corps of Engineers (Corps) is amending its regulations to
establish a danger zone in the Pacific Ocean adjacent to the Mason
Live-Fire Training Range Complex at Marine Corps Base, Camp Blaz on the
north coast of Guam. The danger zone is located entirely within the
Pacific Ocean, comprising 3,660 acres and extending approximately 2.8
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 range is in active use in order to ensure public
safety.
DATES: Effective date: November 8, 2021.
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 [email protected] or
202-761-4922.
SUPPLEMENTARY INFORMATION: In response to a request by the United
States Marine Corps, 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 Mason Live-Fire Training Range Complex (LFTRC) on Guam.
The danger zone regulation will be added at 33 CFR 334.1425. The danger
zone is needed for the Department of Defense to meet its mission under
10 U.S.C. 5063, which is to maintain, train, and equip combat-ready
military forces, deter aggression, and maintain freedom of the seas.
Due to the strategic location of Guam and the Department of Defense's
relocation of Marines from Okinawa to Guam, there will be an increased
need for training and testing areas on Guam. The construction of the
Mason LFTRC and its associated danger zone are designed to meet this
increased need. 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 October
29, 2020 (85 FR 68507). The regulations.gov docket number is COE-2020-
0015. Concurrently, a local public notice for the proposed danger zone
was sent out from the Corps' Honolulu District. In response to the
proposed rule, 89 comments were received. Two commenters were in
support of establishing the danger zone. The remaining 87 comments are
summarized below with the Corps' responses to those comments.
Four commenters requested either a public hearing with the Corps or
public meetings with representatives of the Navy and/or the Corps. The
commenters requested these meetings to better understand the impacts of
the Mason LFTRC and the proposed danger zone, and to have an open
dialogue and discussion. Some commenters requested additional time to
comment on the public notice and said that multiple comment periods
should be conducted. One commenter stated that a mailing list should be
set up for people who wish to be sent public notices directly for
similar proposals.
The Corps determined that 30 days was sufficient to provide
comments on the proposed danger zone regulation. The Corps reviewed all
of the requests for a public hearing or public meetings as well as the
comments received in response to the proposed rule. As stated in the
Corps' regulations at 33 CFR 327.3(a), a public hearing is to be held
``for the purpose of acquiring information or evidence'' to be
considered in the Corps' decision for a proposed action. The Corps
determined that the record for this rulemaking action, including the
public comments received in response to the proposed rule, contains
adequate information regarding public concerns about the proposed
danger zone and that a public hearing was not necessary. Public hearing
denial letters were sent by the Honolulu District to each requestor on
January 14, 2021.
Many commenters stated that no map was available and that they
could not provide substantive comments without knowing the geographic
limits of the proposed danger zone. A few commenters requested
clarification on the times the range would be used or recommended that
the rule specify the exact times the range would be in use and danger
zone activated. One person said that the Corps had incorrectly
calculated the amount of time the area of the danger zone would be
closed to navigation.
The Corps provided a map with the district public notice, which was
posted on the Corps' website, the Marine Corps Base Camp Blaz (MCBCB)
website, and by multiple news outlets in print and on their respective
websites. Additionally, the proposed rule that was published in the
Federal Register and the district public notice both contained
coordinates for the proposed danger zone, as well as a narrative
location description suitable to inform public comments. Upon review of
the map provided with its public notice, the Corps discovered an error
in mapping. The map showed the danger zone extending shoreward of the
mean high water line. This is incorrect. As stated in the
aforementioned narrative description, the danger zone would follow the
mean high water line of the Pacific Ocean and would not extend
shoreward of this line. A new map has been made which corrects this and
shows that the danger zone extends seaward of the mean high water line.
The times proposed for the danger zone to be active were provided
in the proposed rule. The exact days of the week during which live fire
exercises would occur are at the discretion of the Marines in
accordance with their training requirements. Those training
requirements may change over time. The Marines will have a strategic
communication plan (COMMSTRAT) for alerting the public to future range
use. This plan includes posting the schedule on their website, having a
public hotline for questions concerning range operations, and issuing
Notices To Mariners (NTM). Concerning the comment about miscalculating
the total amount of closure times, the Corps did not provide a total
amount of training days the danger zone would be activated because
training sessions are to be scheduled in the future. Also, the total
number of training days is not relevant to this rulemaking action
because the Marines establish the training schedules and those training
schedules fall outside of the Corps' authority to issue regulations to
establish danger zones.
Concerning the requests for extension of the comment period for the
proposed rule, the Corps disagrees that additional time is necessary.
The Corps provided sufficient time for interested parties to provide
their comments on the proposed rule. For most proposed danger zone and
restricted area regulations, the Corps provides a 30-day
[[Page 56209]]
comment period. The Corps agrees that a mailing list should be
available to people who wish to be alerted of public notices. The
Honolulu District mailing list can be found at https://www.poh.usace.army.mil/Missions/Regulatory/Public-Notices/.
Several commenters stated that the proposed danger zone should be
evaluated through the preparation of an environmental impact statement
(EIS). Some commenters stated that an EIS should be prepared because of
the lack of economic analysis or because they believe that the danger
zone would have a significant impact on the quality of the human
environment. One commenter said that specific sections of the
environmental assessment should be referenced and stated that the
public notice was incomplete. Another commenter said that the Corps was
placing the responsibility on the public to provide the analysis of
impacts. Several commenters said that the establishment of the danger
zone is a significant regulatory action. Some commenters requested
consultation documents for 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 so that they
could comment on the completeness of those consultations.
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 that would establish the
danger zone. After evaluating the comments received in response to the
proposed rule, 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' Honolulu District office. The
establishment of this danger zone will not result in work, structures,
or any 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, the Corps Federal action, which is
the establishment of this danger zone, 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 Mason LFTRC.
The boundaries of the danger zone will be plotted by National Oceanic
and Atmospheric Administration (NOAA) on its nautical charts, which
will help alert users of those navigable waters to the presence of the
danger zone, and to the text of the regulations governing that danger
zone.
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, in its NEPA documentation
for the rulemaking to establish the danger zone, the Corps is not
required to address the potential future establishment of a Marine
Corps base on Guam. Because the danger zone will be in effect only when
the range is in use, the establishment of the danger zone will promote
public safety, and impacts to the human environment caused by the
establishment of the danger zone have been minimized. Vessel operators
and fishers can use the navigable waters within the danger zone when
the danger zone is not activated for live fire training exercises. The
Corps has determined there is no need or requirement for mitigation
beyond incorporating measures into the regulation governing the danger
zone to minimize impacts to maritime traffic and fishing activities.
The Corps determined that this rulemaking action is not a significant
regulatory action under Executive Order 12866 because it does not
trigger any of the four significance thresholds identified in that
Executive order.
At Marine Corps Base Camp Blaz, 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 Navy's 2015 Final
Supplemental Environmental Impact Statement (SEIS) for the Guam and
Commonwealth of the Northern Mariana Islands Military Relocation.
A couple of commenters said that the Corps does not have the
authority to establish the danger zone. One of these comments was
specific to Chamoru lands and the other comment pertained to the area
shoreward of waters of the United States. Some commenters stated that
specifics on land restrictions should be made clear and studied for how
these restrictions would affect cultural and historic sites. One
commenter said that the restrictions were arbitrarily decided upon.
The Corps' authority for establishing danger zones is provided in
Chapter 143, Subchapter XIX of the Army Appropriations Act of 1919 (40
Stat 892; 33 U.S.C. 3). The Corps agrees that it does not have the
authority to establish danger zones in uplands landward of the mean
high water line. The danger zone does not extend into areas landward of
the mean high water line. Therefore, there will be no land restrictions
caused by the establishment of this danger zone. With respect to the
comment asserting that the restrictions were arbitrarily decided, the
Corps disagrees that the decision was arbitrary. The Marines conducted
extensive studies on the ballistics of weapons to be fired at the Mason
LFTRC. The design of each range further limited the space in navigable
waters needed for the danger zone. The Marines requested that the
danger zone be comprised of two areas to close off the smallest amount
of area necessary for specific training sessions, to minimize impacts
to the public's use of navigable waters.
A couple of commenters asked about the consequences of entering the
danger zone and requested information regarding how the public could
inform the Marines if someone violated the danger zone. These
commenters said there is a need for public outreach and education on
the use of the danger zone.
Concerning potential consequences for entering the danger zone
while it is being used for small arms training, the most immediate
consequence would be the potential for being struck by bullets, which
on rare occasions may ricochet beyond the range's containment berms.
This safety hazard is the reason for the establishment of this danger
zone, which is to help provide for public safety when the range is in
use. If a person, vessel, watercraft, etc. enter the danger zone
without authorization, MCBCB Range Control will notify the U.S. Coast
Guard for action. Concerning how the public can notify the Marines if
someone appears to violate the danger zone regulation, notification of
alleged violations of the danger zone regulation can be provided to the
MCBCB Range
[[Page 56210]]
Control, U.S. Coast Guard, or by calling 911. The Corps agrees that
public outreach and education on the danger zone can help provide for
the safety of the public. The Marines' COMMSTRAT will establish a
method of public notification that will provide a snapshot of the range
utilization calendar. Once the MCBCB Range Control Facility is
established it will have a phone number for public inquiries.
Additionally, the Marines will issue NTMs prior to active live fire
training exercises and the danger zone will be depicted on applicable
NOAA nautical charts.
Many commenters said that that the establishment of the danger zone
would have negative impacts on local fishers. One commenter asserted
that the danger zone would deprive the people of Guam of their
traditional fishing activities. One commenter stated that the danger
zone would deny growth and development for the people Guam. Other
commenters noted that the impacted fishers would no longer be able to
sell fish at local markets to support their families. A few commenters
said that the federal government is taking too much of Guam's waters
and submerged lands.
The establishment and use of the danger zone would restrict access
to navigable waters within the danger zone only during small arms
training exercises. Those navigable waters will be available for
fishing when the Mason LFTRC is not being used for small arms training.
The Marines have included a two-tiered approach to ensure that the
least amount of area of navigable waters is restricted during live fire
training, thus reducing the amount of closure time in the larger area.
Practicing traditional, commercial, or recreational fishing in this
area would continue to be allowed when the danger zone is not
activated. Establishment of the danger zone would not prevent local
fishers from being able to catch and sell fish at local markets. The
danger zone is located over federally owned submerged lands and would
not require the acquisition of any lands, submerged or otherwise. The
Corps' regulations require that danger zones and restricted areas
provide public access to the affected areas 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).
This final rule complies with that regulation.
One commenter said that 15 to 20 vessels run through these waters
each day and that it is a popular area for many types of fish. Another
commenter stated that the danger zone would result in the loss of some
of the best waters for fishermen. Other commenters said that this
danger zone is within prime trolling and bottom fishing grounds used by
many boaters and that any restriction would be unreasonable. Another
commenter said that fishers would not be able to fish when particular
fish are running or in migration with good sea conditions.
Offshore fishing areas located within the danger zone would not be
allowed when the range is in use. Recreational boating and fishing
would be permitted within the danger zone when live-fire training is
not being conducted at the range. To provide for their safety, fishers
and recreational boaters cannot enter the danger zone when live firing
exercises are being conducted. All live fire training will cease if
watercraft inadvertently enter the danger zone and training would
resume once the vessel has cleared the danger zone. When live fire
training is occurring, fishers and recreational boaters will need to
navigate around the danger zone.
As stated in the Navy's 2015 SEIS, approximately 65% of fishing
trips occur on the weekends and 35% of fishing trips occur on weekdays.
Training at the Mason LFTRC will typically occur on weekdays when fewer
vessels would potentially be transiting the danger zone. However,
periodic weekend use of the Mason LFTRC could occur as needed. To
provide awareness of times that the range is in use, the Marines will
provide the proposed training schedule to the U.S. Coast Guard, who
will issue and broadcast NTMs that would identify the danger zone as
being in active use and direct vessel operators to navigate clear of
the active danger zone. Additionally, boaters and fishers will be able
to contact range control via radio or phone to get real time updates of
active use of the Mason LFTRC, which will also minimize impacts on
vessel operators. This communication will allow boaters to transit the
danger zone during scheduled training days when the range is
temporarily inactive. Range lookouts will scan the active area prior to
and during live-fire training sessions to ensure that there are no
vessels within or approaching the danger zone. If vessels are at risk
of entering the active area, use of the range would be suspended until
the vessel leaves the danger zone.
A few commenters said that restrictions of the navigable waters for
up to 75% of the year is too great for local fishers. A couple of
commenters stated that if the danger zone is established it should be
active fewer days out of the year to ensure that main fishing seasons
are not impacted. One commenter asserted that due to the amount of time
the Marines could restrict access to the danger zone, the entire
fishing community would be at the mercy of the Marines' training
schedule.
The proposed rule did not include estimates of the number of
training days expected to occur during a typical year because the
number of training days may vary from year-to-year. In response to
these comments the Marines clarified, through Marine Corps Order
3550.10, that their standard for range availability is 242 days per
calendar year, and that their annual goal is to utilize each range for
at least 70 percent of the available days per year, or 169 days if the
range is available the entire 242 days. Therefore, if the Mason LFTRC
meets the goal of 169 days per year then the active areas of the danger
zone would be restricted intermittently for 24 weeks. Additionally, for
the larger of the two areas (Area 1), the danger zone would be
activated only for training on larger caliber weapons, which would
occur with less frequency. As stated above, fishing activities can
occur in navigable waters within the danger zone when the danger zone
is not in use for live firing exercises.
A few commenters said that the danger zone would result in fishing
restrictions that affect the local economy. A few commenters stated
that some fishers use these waters to sustain their families and that
the activation of the danger zone would limit their ability to feed
themselves. Another commenter asked whether the timing of range
activities could adjusted to reduce impacts during fishing seasons. One
commenter suggested that the Marines provide mitigation for impacts to
fishing in the form of placing new Fish Aggregating Devices (FADs),
assisting the Guam government in maintaining existing FADs, and/or
conducting harbor maintenance around the island.
The Corps acknowledges that the establishment and use of the danger
zone will have some impacts on fishing activities but determined that
these impacts would not unreasonably interfere with or restrict the
food fishing industry. The establishment of the danger zone is
necessary for public safety, including the safety of fishers that may
fish in the waters within the danger zone. Fishers may utilize these
waters for fishing activities when the danger zone is not activated for
live firing training sessions. When the danger zone is activated,
fishers may utilize navigable waters outside of the danger zone for
fishing activities. As discussed in the Navy's 2015 SEIS, the Marines
have committed to work with
[[Page 56211]]
fishing community leaders and members to ensure the greatest
practicable consideration is given to measures that would minimize or
offset concerns about fishing impacts due to the regulations governing
the danger zone. The Corps has determined that the establishment of the
danger zone would not require any compensatory mitigation, such as the
installation of new FADs or the maintenance of existing FADs.
The Corps' regulations also require the Corps to consult with the
Regional Directors of the U.S. Fish and Wildlife Service and National
Marine Fisheries Service regarding potential impacts to the food
fishing industry. The Corps' Honolulu District sent each agency a
letter dated January 18, 2021, requesting comments in relation to the
food fishing industry. Neither agency responded to those letters.
Many commenters expressed opposition to the proposed danger zone
because it would restrict recreational access to the waters and
coastline. One commenter said that the beaches of Ritidian should be
open to the public. A commenter stated that establishing the danger
zone would result in beach closures for nine consecutive months. One
commenter said that they visit Ritidian every week and the danger zone
would limit their access to the beach to only several days a year. A
number of commenters indicated that the danger zone would restrict
access to upland areas, including public and private lands.
The Corps acknowledges that the danger zone will restrict access to
navigable waters within the danger zone while training activities are
conducted. However, these restrictions will be intermittent and they
are necessary for public safety. The establishment of the danger zone
would not deny recreational access to waters and the coast. The danger
zone would only restrict recreational access to certain navigable
waters for the purposes of safety within the designated areas of the
danger zone. Among the ranges within the Mason LFTRC, the Multi-Purpose
Machine Gun Range has the largest danger zone (Area 1) and is the only
one that would preclude access to a portion of the publicly accessible
areas of the Ritidian Unit of the Guam National Wildlife Refuge. When
other ranges in the Mason LFTRC are in use, the danger zone (Area 2)
would not restrict access to the publicly accessible portion of the
Ritidian Unit of the Guam National Wildlife Refuge. The Navy has an
agreement with the Guam National Wildlife Refuge to establish new
recreational areas to the west of the existing refuge and completely
outside of the boundaries of the danger zone. When completed, this area
will ensure public access year-round.
The establishment of the restricted area would not limit public
access to the beaches to several days during the year. The danger zone
would allow access several days of each week of the year. The danger
zone would only limit access to waters that are seaward of the mean
high water line. The establishment of the danger zone would not
restrict access to any upland areas. Also, the Mason LFTRC's design was
the only option that could be completed entirely on federal lands.
Therefore, there would be no restrictions to private property as a
result of the establishment of the danger zone.
Many commenters expressed concerns about cultural and historic
resources impacted by the construction of the firing range. Some
commenters stated that the government was taking historic lands and
destroying resources. Other commenters stated that the impacts to
historic properties should not be allowed.
The Corps' authority is limited to issuing regulations for the
establishment of the danger zone, which will not cause any physical
alteration of the environment. The establishment of the danger zone
will not result in effects to cultural and historic resources. Impacts
to cultural and historic resources caused by the construction of the
base are separate from the Corps' establishment of the danger zone
through the rulemaking process. The establishment of the danger zone is
an administrative process, and is an undertaking of a type that does
not have the potential to cause effects on historic properties,
cultural resources, or sacred cultural sites. The danger zone is
located entirely in waters of the Pacific Ocean. The establishment of
the danger zone involves no construction, structures, or in-water work.
The Corps acknowledges that when the range is in use, there will be
temporary impacts to access of traditional fishing grounds, and those
impacts are discussed above.
A few commenters asked about the efficacy of red flags and lights
for notification of an active firing range. One commenter said that it
is not clear how the public would know which range area was active.
Another commenter stated that protocols should be in place beyond
issuing NTMs to inform boaters and the public about range activities. A
few commenters asked how the danger zone would be enforced and if
protocols would be in place to ensure boaters do not enter the danger
zone during training sessions. A couple of commenters expressed concern
about how the coastline would be managed to prevent swimmers, fishers,
divers, and others from accessing the danger zone during live fire
exercises. Commenters also voiced concerns about how the public could
notify the Marines if they observed a vessel or person in the danger
zone during life firing exercises. Finally, some commenters stated
concerns over smaller craft having to travel around the danger zone and
having to enter more tumultuous waters to reach fishing areas.
Similar to navigation lights or aids on buoys and approach lighting
for airfields, the red lights used for nighttime fire would be visible
under all weather conditions that would be conducive to small boat and
small arms range operations. The red flag (daytime fire) method of
identifying an active danger zone is currently in use at the Finegayan
Range, as well as 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 public would be informed as to which
area is being used through NTMs, or by viewing the range schedule which
will be posted on the MCBCB website. The public may also contact the
hotline for range control to be set up by the Marines. The Marines'
COMMSTRAT plan also includes future education and outreach to the
public on the danger zone, and will include graphics and posters
displayed at strategic locations across the island to better inform the
public.
Prior to the activation of any range for live fire training, range
inspectors will physically inspect the beach to ensure members of the
public are not present near the danger zone. Military personnel will
provide oversight and advise the public of danger zone restrictions.
Road guards will have radio communications with MCBCB Range Control.
The waters of the danger zone will be monitored by radar inside MCBCB
Range Control. MCBCB Range Control will notify the U.S. Coast Guard of
the presence of vessels in the danger zone so that the U.S. Coast Guard
can take appropriate action. In additional, MCBCB Range Control would
notify each range to cease fire until the U.S. Coast Guard removes the
vessels or the vessels expeditiously exit the danger zone. The public
may notify MCBCB Range Control of vessels entering the danger zone via
the hotline that will be established, by contacting MCBCB directly, or
by dialing 911.
The Corps acknowledges that to avoid the active danger zones,
vessels may
[[Page 56212]]
have to travel into deeper waters that are further off the coastline.
Prior to leaving, these boaters would be notified when the range will
be active via NTMs and the other outreach tools discussed above. Those
vessel operators can plan their trips to avoid active live fire
exercises.
Many commenters stated concerns to land clearing, impacts to the
local aquafer, adverse effect to plants and animals, and potential
pollution from construction of the Mason LFTRC and its use. Other
commenters expressed concern with how the range would affect threatened
or endangered species. One commenter asked how the rounds fired would
be collected and the area cleaned while other commenters were concerned
with how the discharge of metals would affect the local water supply.
Establishing the danger zone is an administrative process that
would have no direct or indirect adverse effects on the environment.
Similarly, the establishment of the danger zone would have no effect on
threatened and endangered species or designated critical habitat or
result in the alteration of any natural resources. The impacts caused
by the construction of the base, including the Mason LFTRC, and any
other potential impacts shoreward of the mean high water line are
beyond the purview of this rulemaking action.
Many commenters said that this danger zone should not be
established at Ritidian because other existing ranges and their
respective danger zones should be used instead. Other commenters
suggested that there are other areas on the island to build the ranges.
A few commenters said that it is not possible to have the range and
danger zone completely on land.
The Mason LFTRC was designed to meet the specific training needs of
the Marines. Other ranges on the island were built for different
purposes and needs and do not meet the needs of the Marines. In
addition, in its 2015 SEIS, the Navy analyzed five different options
including the use of other ranges. The construction of the Mason LFTRC
was the only option of the five that could be accomplished solely on
federally owned lands. This danger zone is the only option for the
Mason LFTRC currently under construction and it must be over the water.
One commenter stated that an alternative would be to establish more
stringent requirements for advanced notice to the public. This
commenter suggested a minimum 72-hour notice that would allow locals to
better plan their recreational or cultural activities in the Ritidian.
Two commenters suggested limiting the days that small arms training is
conducted. One commenter said that the danger zone should be reduced in
size to provide more access to navigable waters.
The Corps acknowledges the benefits of increased communication and
advance notice of range operations. The regulations do not specify the
time limit for issuing an NTM, and the Corps does not have the
authority to impose such a time limit. The Marines have agreed to issue
NTMs no later than 24 hours in advance to allow for maximum flexibility
for use of the firing range. Additionally, a range schedule will be
posted on the MCBCB website. The Marines' COMMSTRAT will establish a
method of public notification that will provide a snapshot of the range
utilization calendar, and the Marines will establish a phone number for
public inquiries. While limiting training sessions may result in the
danger zone being activated less often, it is up to the Marines to
determine their training requirements.
The Marines have limited the danger zone to the minimum size
required to ensure public safety when the ranges are active. The
Marines have requested two separate areas within the danger zone: Area
1, which is 3,660 acres in size, and Area 2, which is 1,425 acres in
size. Area 2 is 40% the size of Area 1 and would be activated for
smaller caliber weapons training on the more frequently used ranges.
Area 1 would be activated fewer times than Area 2 because the larger
caliber weapons would be trained on less frequently. The Corps has
determined that the approach of designating two areas within the danger
zone will be less restrictive to the public and will provide greater
access to the public while ensuring public safety during live-fire
training exercises.
Procedural Requirements
a. Regulatory Planning and Review. This final rule is not a
``significant regulatory action'' under Executive Order 12866 (58 FR
51735, October 4, 1993) and it was not submitted to the Office of
Management and Budget for review.
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 for 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 Mason
LFTRC. To minimize impacts to maritime traffic, the Marines have
designed a two-tiered approach for the danger zone to ensure that the
least amount of area is restricted during training sessions. Fishers
and other boaters can utilize navigable waters outside of the danger
zone when the danger zone is activated for live firing exercises. When
the range is not in use, the danger zone will be open to normal
maritime traffic and all activities, including fishing, 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. Under
Section 203 of the Act, the Corps has also found 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. 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).
[[Page 56213]]
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 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. Add Sec. 334.1425 to read as follows:
Sec. 334.1425 Pacific Ocean adjacent to the Mason Live-Fire Training
Range Complex located at U.S. Marine Corps Base, Camp Blaz, on the
northwestern coast of Guam; danger zone.
(a) The areas. The danger zone will consist of two areas: An outer
area (Area 1) for larger caliber weapons and a smaller area (Area 2)
for smaller caliber weapons that is set within Area 1. The datum for
the coordinates in this section is NAD-83.
(1) Area 1. The waters bounded by the following seven points: Point
A (13[deg]38'59.443'' N; 144[deg]51'11.522'' E) following the mean high
water line to Point B (13[deg]38'36.722'' N; 144[deg]52'50.256'' E),
following the mean high water line to Point C (13[deg]38'33.936'' N;
144[deg]52'53.031'' E), Point D (13[deg]40'8.336'' N;
144[deg]53'44.876'' E), Point E (13[deg]40'56.842'' N;
144[deg]53'42.808'' E), Point F (13[deg]41'28.434'' N;
144[deg]52'37.582'' E), and Point G (13[deg]41'3.344'' N;
144[deg]51'53.652'' E).
(2) Area 2. A subset of waters within Area 1 bounded by the
following six points: Point A (13[deg]39'7.432'' N; 144[deg]52'8.210''
E) following the mean high water line to Point B (13[deg]38'36.722'' N;
144[deg]52'50.256'' E), following the mean high water line to Point C
(13[deg]38'33.936'' N; 144[deg]52'53.031'' E), Point D
(13[deg]39'54.724'' N; 144[deg]53'37.400'' E), Point E
(13[deg]40'25.737'' N; 144[deg]52'43.157'' E), and Point F
(13[deg]40'6.494'' N; 144[deg]52'7.349'' E).
(b) The regulation. (1) The enforcing agency will designate which
area will be closed for use on dates designated for live fire. No
persons, watercraft, or vessels shall enter or remain in the area
during the times designated for live fire except those authorized by
the enforcing agency. All live-fire training will cease if a person,
watercraft, or vessel inadvertently enters the designated area and may
resume once they have cleared the danger zone. The Installation Range
Control Officer will be responsible for submitting all local Notices to
Mariners for specific dates of firing, which will be disseminated
through the U.S. Coast Guard and on the Marine Corps Base Camp Blaz
website. The area will be open to normal maritime traffic when the
range is not in use.
(2) When the range is in use red flags will be displayed from
conspicuous and easily seen locations on the east and west boundaries
of the danger zone to signify that the range is in use. These flags
will be removed when firing ceases for the day.
(3) During the night firing, red lights will be displayed on the
east and west sides of the danger zone to enable safety observers to
detect vessels that may attempt to enter the danger zone. All range
flags and red lights will be visible from 360 degrees. Due to the depth
of the ocean the danger zone will not be marked with buoys.
(c) Enforcement. The restrictions on public access through the
danger zone shall be enforced by the Commander, Marine Corps Base, Camp
Blaz, and such agencies as the Commander may designate in writing.
Alvin B. Lee,
Director of Civil Works.
[FR Doc. 2021-21981 Filed 10-7-21; 8:45 am]
BILLING CODE 3720-58-P
