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 is amending the danger zone regulations at 33 CFR 334.1380 to change the hours that weapons firing may be conducted at the Ulupau Crater Weapons Training Range, on the Island of Oahu, Hawaii. The amendment to the danger zone is needed for the Department of Defense to meet its mission under 10 U.S.C. 5062, which is to maintain, train, and equip combat-ready military forces, deterring aggression, and maintaining freedom of the seas. The danger zone is necessary to protect the public from hazards associated with small arms training.

The proposed rule was published in the 88 FR 85155 edition of the Federal Register on December 07, 2023. The regulations.gov docket number was COE-2023-0010. Concurrently, a local public notice for the proposed danger zone amendment was sent out from the Honolulu District. In response to the proposed rule, three comments were received. Substantive comments are summarized below.

The State of Hawaii Office of Planning and Sustainable Development (OPSD) stated that the proposed amendment to the existing danger zone is subject to the Coastal Zone Management Act (CZMA) federal consistency review by the Hawaii CZM Program. This comment was resolved as the MCBH assessed the amendment at a CATEX level. OPSD concurred.

One person provided several comments regarding boundaries, expansion, net impact, locations of the warning beacons, frequency of firing events, Section 106, ESA, and EFH. Some of the comments were the result of errors in the text of the public notice and self-resolved. Regarding net impact of the proposed amendment to the hours of operation of the danger zone, tactical weapons training has been conducted within the Ulupau Crater since 1942 and the proposed hours of operation are similar to the hours of operation that have been in place since 2009; therefore, the proposed amendment would be consistent with onsite conditions that have been present for over 80 years. Regarding location of warning beacons, the red light beacons/flagpoles are located at 21.458833°, −157.724557° for the north-facing beacon and 21.450469°, −157.727293° for the east-facing beacon. The beacons are visible throughout the danger zone and thereby conform to safety standards. Regarding a comment about the frequency or duration of firing events, compliance with the MCBH training mission requires flexibility in the frequency and duration of firing events; therefore, frequency and duration of firing events is not specified. Regarding Section 106, ESA and EFH, the MCBH, is the lead federal agency responsible for compliance with applicable federal laws.

Procedural Requirements

a. Review Under Executive Orders 12866 and 13563. This rule is issued with respect to a military function of the Department of Defense and the provisions of Executive Order 12866 and 13563 do not apply.

b. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. This rule has been reviewed under the Regulatory Flexibility Act (Public Law 96-354), which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments). The Corps determined that the amendment of existing danger zones will not have a significant economic impact on a substantial number of small entities. For an analysis of potential economic impacts of this rule, please see the regulatory analysis in the environmental assessment.

c. Review under the National Environmental Policy Act. An environmental assessment (EA) has been prepared for the amendment of the hours of operation of this danger zone. The Corps has concluded that the amendment of the hours of operation 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 contact section listed above. Alternatively, electronic copies of the final EA and Finding of No Significant Impact may be acquired via the Freedom of Information Act request process as described at poh.usace.army.mil/Media/FOIA/.

d. Unfunded Mandates Reform Act of 1995. This rule does not impose an enforceable duty among the private sector nor state, local, and tribal governments and, therefore, it is not a Federal private sector mandate, nor a state, local, or tribal government mandate, and it is not subject to the requirements of either Section 202 or Section 205 of Public Law 104-4 (Unfunded Mandates Reform Act of 1995). We have also found that under Section 203 of the Act, small governments will not be significantly and uniquely affected by this rulemaking.

e. Congressional Review Act. The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The Corps is submitting a report containing the final rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller ( printed page 51595) General of the United States. The rule will take effect 30 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).

For the reasons stated in the preamble, the United States Army Corps of Engineers amends 33 CFR part 334 as set forth below:

91 FR 51594