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###### Department of Defense

###### Department of the Army, Corps of Engineers

          - 33 CFR Part 334

# AGENCY:

United States Army Corps of Engineers, Department of Defense.

# ACTION:

Notice of proposed rulemaking and request for comments.

# SUMMARY:

The Corps of Engineers is proposing to amend an existing permanent danger zone in the waters of the Upper Machodoc Creek and the Potomac River in the vicinity of Dahlgren in King George County, Virginia. The Naval Surface Warfare Center, Dahlgren conducts research, development, testing and evaluation of national defense systems on the Potomac River Test Range. Many of the tests are hazardous operations presenting a danger to persons or property in the danger zone. The proposed amendment is necessary to protect the public from hazardous operations such as firing large and small caliber guns and projectiles, aerial bombing, use of directed energy and operating manned or unmanned watercraft. The proposed amendment adds a 100-yard buffer to the Middle Danger Zone to prevent public contact with unexploded ordnance along the shoreline of Naval Surface Warfare Center, Dahlgren within this zone.

# DATES:

Written comments must be submitted on or before December 10, 2010.

# ADDRESSES:

You may submit comments, identified by docket number COE-2010-0038, by any of the following methods:

*Federal eRulemaking Portal: http://www.regulations.gov.*                         Follow the instructions for submitting comments.                    

*E-mail: david.b.olson@usace.army.mil*. Include the docket number, COE-2010-0038, in the subject line of the message.                    

*Mail:*                         U.S. Army Corps of Engineers, Attn: CECW-CO-R (David B. Olson), 441 G Street, NW., Washington, DC 20314-1000.                    

*Hand Delivery/Courier:*                         Due to security requirements, we cannot receive comments by hand delivery or courier.                    

*Instructions:*                         Direct your comments to docket number COE-2010-0038. All comments received will be included in the public docket without change and may be made available on-line at                         *http://www.regulations.gov*, including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through regulations.gov or e-mail. The regulations.gov Web site is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail directly to the Corps without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic                               ( print page 69033)                            comment, we recommend that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses.                    

*Docket:*                         For access to the docket to read background documents or comments received, go to                         *http://www.regulations.gov*. All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.                    

# FOR FURTHER INFORMATION CONTACT:

Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Mr. Robert Berg, Corps of Engineers, Norfolk District, Regulatory Branch, at 757-201-7793.

# 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 of Engineers proposes to amend its regulations at 33 CFR part 334 for a permanent danger zone in the waters of Upper Machodoc Creek and the Potomac River in the vicinity of Naval Surface Warfare Center, Dahlgren in King George County, Virginia. The Naval Surface Warfare Center, Dahlgren conducts research, development, testing and evaluation of national defense systems on the Potomac River Test Range. Many of the tests are hazardous operations presenting a danger to persons or property in the danger zone. The proposed modification of the existing permanent danger zone is necessary to protect the public from hazardous operations such as firing large and small caliber guns and projectiles, aerial bombing, use of directed energy, and operating manned or unmanned watercraft. The proposed modification adds a 100-yard buffer to the Middle Danger Zone to prevent public contact with unexploded ordnance along the shoreline of Naval Surface Warfare Center, Dahlgren within this danger zone. The proposed modification will: (1) Expand the description of continuing hazardous operations in the danger zone to include firing of large or small caliber guns and projectiles, aerial bombing, use of directed energy technology, and manned or unmanned water craft operations; (2) change the latitude and longitude references to correspond to NAD83 without changing the boundaries themselves, except in the case of the point at 38°17′54′′, -77°01′02′′ to move the reference point from neighboring property to Naval Surface Warfare Center, Dahlgren property; (3) expand the Middle Danger Zone further into Upper Machodoc Creek where operations involving directed energy, watercraft maneuvers, and transport of explosives are conducted; (4) add a 100-yard buffer to prevent public contact with unexploded ordnance along the shoreline of Naval Surface Warfare Center, Dahlgren within the Middle Danger Zone; (5) extend normal hours of hazardous operations from 4 p.m. to 5 p.m.; and (6) provide for continued use of the naval facility shoreline for commercial fishing and waterfowl hunting blinds under existing Navy and state regulations.

The current regulation authorizes Naval Surface Warfare Center, Dahlgren to restrict watercraft from entering or leaving Upper Machodoc Creek. The amendment will allow patrol boats to engage watercraft desiring to leave Upper Machodoc Creek a few hundred yards farther west before they get to the existing danger zone boundary at the mouth of the creek. The restriction will be in place 24 hours a day, seven days a week.

## Procedural Requirements

### a. Review Under Executive Order 12866

This proposed 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 proposed 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). Unless information is obtained to the contrary during the public notice comment period, the Corps expects that the economic impact of the amendment of this danger zone would have practically no impact on the public, no anticipated navigational hazard or interference with existing waterway traffic. This proposed rule, if adopted, will have no 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 expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered. It will be available from the District office listed at the end of                     **FOR FURTHER INFORMATION CONTACT**                    , above.                

### d. Unfunded Mandates Act

This proposed 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 set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

# PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS

1. The authority citation for 33 CFR part 334 continues to read as follows:

Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).

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

§ 334.230 

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

                            (i)                             *Lower zone.*                             The entire portion of the lower Potomac River between a line from Point Lookout, Maryland, to Smith Point, Virginia, and a line from Buoy 14 (abreast of St. Clements Island) to a point near the northeast shore of Hollis Marsh at latitude 38°10′00′′, longitude 76°45′22.4′′. Hazardous operations are conducted in this zone at infrequent intervals.                                  ( print page 69034)    

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

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

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

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

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

                            (3)                             *Enforcement.*                             The regulations in this section shall be enforced by the Commander, Naval Surface Warfare Center, Dahlgren and such agencies as he/she may designate. Patrol boats, in the execution of their mission assigned herein, shall display a square red flag during daylight hours for purposes of identification; at night time, a 32 point red light shall be displayed at the mast head. Range Control at Naval Surface Warfare Center, Dahlgren can be contacted by Marine VHF radio (Channel 16) or by telephone at (540) 653-8791.                        

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

* * * * *

Dated: November 3, 2010.

Michael G. Ensch,

Chief, Operations and Regulatory, Directorate of Civil Works.

[FR Doc. 2010-28385 Filed 11-9-10; 8:45 am]

BILLING CODE 3720-58-P