[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR209.200]

[Page 142-144]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 209--ADMINISTRATIVE PROCEDURE--Table of Contents
 
Sec. 209.200  Regulations governing navigable waters.

    (a) Publication of regulations. (1) Regulations prescribed by or 
under the direction of the Secretary of the Army to govern navigation 
and navigable waters, are contained in the Code of Federal Regulations, 
title 33, Navigation and Navigable Waters, Chapter II.
    (2) District engineers (or division engineers if considered 
preferable by the latter to avoid duplication in cases where the 
regulations involved apply to more than one district) will distribute 
copies of departmental regulations to all known interested parties as 
soon as their publication has been noted in the Federal Register. In the 
case of regulations applicable to more than one division, distribution 
will be handled as agreed upon by the division engineers concerned. 
Under the Administrative Procedure Act (5 U.S.C. 551-553), publication 
in the Federal Register shall be not less than 30 days prior to the 
effective date except as

[[Page 143]]

otherwise provided upon good cause found and published with the 
regulations.
    (b) Navigation regulations. (1) Section 7 of the River and Harbor 
Act approved August 8, 1917 (40 Stat. 266; 33 U.S.C. 1) authorizes the 
Secretary of the Army to prescribe such regulations for the use, 
administration, and navigation of the navigable waters of the United 
States as public necessity may require for the protection of life and 
property, or for operations of the United States in channel improvement, 
covering all matters not specifically delegated by law to some other 
executive department. The statute provides for the posting of 
regulations and punishment for violations.
    (2) Section 6 of the River and Harbor Act approved June 13, 1902 (32 
Stat. 374; 33 U.S.C. 499) provides that regulations prescribed by the 
Secretary of the Army may be enforced as provided in section 17 of the 
River and Harbor Act approved March 3, 1899 (30 Stat. 1153; 33 U.S.C. 
413).
    (3) District Engineers will take action with respect to regulations 
prescribed for waterways under their jurisdiction:
    (i) To insure that the regulations are brought to the attention of 
the public.
    (ii) To insure that the regulations are properly and fairly 
administered.
    (iii) To recommend any revisions necessary to permit full use of the 
waterway by the public.
    (c) Danger zones. (1) The Secretary of the Army has authority to 
prescribe regulations for the use and navigation of any area of the 
navigable waters of the United States or waters under the jurisdiction 
of the United States likely to be endangered by Department of Defense 
operations. This authority is pursuant to the provisions of Chapter XIX 
of the Army Act of July 9, 1918, or of section 7 of the River and Harbor 
Act of August 8, 1917.
    (2) On receipt of a request from any element of the Department of 
Defense or other agency for approval by the Secretary of the Army of 
regulations establishing danger zones under authority of either Act, the 
District Engineer will, prior to issuing any public notice, make certain 
that the applicant: (i) Has coordinated its proposed operations with any 
operations being conducted or contemplated by other agencies in the same 
area with a view to avoiding interagency conflicts, (ii) has obtained 
clearance from the proper Regional Subcommittee on Airspace, Rules of 
the Air and Air Traffic Control (Air Coordinating Committee), where the 
use of airspace is involved, and (iii) has conducted preliminary 
discussions with local interests when considered advisable. In the case 
of proposed danger zones off the Atlantic and Pacific Coasts, the 
coordination referred to in (c)(2)(i) of this section will include the 
Commander, Service Force, U.S. Atlantic Fleet, or the Commander, Western 
Sea Frontier.
    (3) The authority to prescribe danger zone regulations must be 
exercised so as not to interfere with or restrict unreasonably the food 
fishing industry. Whenever the establishment of a proposed danger zone 
or restricted area may affect fishing operations the District Engineer 
will consult with the regional director, U.S. Fish and Wildlife Service, 
Department of the Interior. Two copies of all notices of applications 
for the establishment of danger zones and restricted areas will be 
forwarded to the Chief of Staff, U.S. Air Force. In addition, notices of 
all applications relating to the establishment of aerial gunnery and 
bombing areas will be sent to local Army, Navy, and Federal Aviation 
Agency representatives.
    (4) If the use of water areas is desired only for such temporary, 
occasional, or intermittent periods that operations can be conducted 
safely without imposing restrictions on navigation, applicants may be 
informed that formal regulations by the Secretary of the Army are not 
required. However, proper notices for mariners requesting that vessels 
avoid the areas will be issued by the District Engineer to all 
interested persons. Copies will be sent to the Commandant, U.S. Coast 
Guard, Washington, D.C. 20226 and the Commander, U.S. Naval 
Oceanographic Office, Washington, D.C. 20390.
    (d) Dumping grounds. (1) Section 4 of the River and Harbor Act of 
March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419), authorizes the Secretary 
of the Army to prescribe regulations to govern the

[[Page 144]]

transportation and dumping into any navigable water, or waters adjacent 
thereto, of dredgings and other refuse materials whenever in his 
judgment such regulations are required in the interest of navigation.
    (2) Section 13 of the river and Harbor Act of March 3, 1899 (30 
Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to 
permit the deposit of refuse matter in navigable waters, whenever in the 
judgment of the Chief of Engineers anchorage and navigation will not be 
injured thereby, within limits to be defined and under conditions to be 
prescribed by him. Although the Department has exercised this authority 
from time to time, it is considered preferable to act under Section 4 of 
the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 
419). As a means of assisting the Chief of Engineers in determining the 
effect on anchorage of vessels, the views of the U.S. Coast Guard will 
be solicited by coordination with the Commander of the local Coast Guard 
District.
    (3) Under the authority contained in an Act of Congress to prevent 
obstructive and injurious deposits within the harbor and adjacent waters 
of New York City of June 29, 1888 (25 Stat. 209; 33 U.S.C. 441), the 
Supervisor of New York Harbor has established dumping areas in those 
waters and has prescribed regulations for their use. The provisions of 
the act are enforced by the Supervisor under the direction of the 
Secretary of the Army.
    (4) In considering requests for the establishment of dumping 
grounds, District and Division Engineers will give careful consideration 
to the requirements of navigation and will take action to prevent 
unreasonable injury to fish and wildlife.
    (e) Public notice and consultation with interested parties. (1) When 
applications are received for the promulgation of regulations as 
outlined in paragraphs (b) through (f), inclusive, of this section, 
District Engineers will issue public notices to all parties deemed 
likely to be interested and specifically to the agencies referred to in 
these paragraphs. The notice should fix a limiting date within which 
comments will be received, normally a period not less than 30 days after 
the actual mailing of the notice. If time is an essential element when 
adequately explained by the applicant, the District Engineer is 
authorized to give interested parties a minimum of 10 days after receipt 
of the notice in which to present protests. A copy of every notice 
issued will be sent to the Chief of Engineers, Attention: ENGCW-ON.
    (2) Copies of the notices sent to interested parties, together with 
a list of parties to whom sent, will accompany reports on all 
applications for promulgation of regulations submitted to the Chief of 
Engineers for necessary action.
    (3) In all instances when response to a public notice has been 
received from a Member of Congress, the District Engineer will inform 
the Member of Congress of the final action taken on the application.
    (f) Public hearings. (1) It is the policy of the Chief of Engineers 
to conduct his civil works activities in an atmosphere of public 
understanding, trust, and mutual cooperation and in a manner responsive 
to public needs and desires. To this end, public hearings are helpful 
and will be held whenever there appears to be sufficient public interest 
to justify such action. In case of doubt, a public hearing should be 
held.
    (2) Among the instances warranting public hearings are general 
public opposition to the promulgation of regulations governing the use 
and navigation of navigable waters. District Engineers will notify the 
Division Engineer of the need for a hearing, state the proposed 
arrangements therefor and obtain his concurrence therein. Public 
hearings will be held in any case when Congressional interests or 
responsible local authorities make an official and valid request 
therefor and such action will fulfill the above-stated policy and 
objectives.

[33 FR 18670, Dec. 18, 1968, as amended at 51 FR 45765, Dec. 22, 1986; 
52 FR 24157, June 29, 1987]