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###### Department of Defense

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

          - 33 CFR Part 334

# AGENCY:

U.S. Army Corps of Engineers, Department of Defense.

# ACTION:

Final rule.

# SUMMARY:

                        The U.S. Army Corps of Engineers (Corps) is adding regulations to establish a restricted area around the AUSTAL, USA shipbuilding facility located in Mobile, Alabama, because of                               ( print page 48152)                            the sensitive nature of the on-going and potential future activities at that facility. The Supervisor of Shipbuilding, Conversion and Repair (SUPERVISOR), located in Bath, Maine is responsible for United States Navy shipbuilding activities at AUSTAL, USA located in Mobile, Alabama. The restricted area will be used for on-going construction when vessels are placed in the water. The restricted area is essential to protect persons and property from the dangers associated with the operation and safeguard the area from accidents, sabotage and other subversive acts.                    

# DATES:

*Effective date:*                         October 22, 2009.                    

# ADDRESSES:

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

# FOR FURTHER INFORMATION CONTACT:

Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922 or Mr. Damon M. Young, U.S. Army Corps of Engineers, Mobile District, Regulatory Division, at 251-694-3781.

# SUPPLEMENTARY INFORMATION:

The Supervisor of Shipbuilding, Conversion and Repair (SUPERVISOR), located in Bath, Maine is responsible for United States Navy shipbuilding activities at AUSTAL, USA located in Mobile, Alabama. In accordance with Department of Defense and Department of the Navy guidance, the SUPERVISOR is responsible for the antiterrorism efforts and force protection of Department of the Navy assets under his charge. The SUPERVISOR established SUPSHIP Bath Detachment Mobile, Alabama to assist to that end by managing a portion of the activities at the AUSTAL, USA shipbuilding facility in Mobile, Alabama. As of April 2008, the first ship has been launched and placed pier side of the facility. The proponent will be required to place marker buoys outlining safe navigation around the restricted area in accordance with USCG regulations.

                    The proposed rule was published in the June 12, 2008 edition of the                     **Federal Register**                     (73 FR 33344) and the docket number was COE-2008-0014. In response to the proposal several comments were received.                

Three commenters stated that they have no objection to the establishment of the restricted area. Several commenters expressed concern that the buoys marking the restricted area would interfere with navigation, especially for adjoining property owners, and one commenter requested that a floating petroleum barrier be installed along the east-west leg to the south end of the restricted area.

To resolve these concerns, one of the marking buoys will not be installed. Instead, a petroleum barrier that can be more easily removed will be used in place of a marking buoy, which will allow for access by the adjoining property owners when warranted. We have also added paragraph (b)(3) to this rule to provide a process whereby entities can request access to the restricted area by contacting the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, Maine, or his/her authorized representative on Marine Communication Channel 16.

In response to a request by the United States Navy, 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 33 CFR Part 334 to establish a new restricted area in the Mobile River.

## Procedural Requirements

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

                    b.                     *Review Under the Regulatory Flexibility Act.*                     The rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). The Corps determined that the economic impact of the new restricted area would have practically minimal to no impact on the public, and will not result in any anticipated navigational hazard or interference with existing waterway traffic. This rule will have no significant economic impact on small entities.                

                    c.                     *Review Under the National Environmental Policy Act.*                     This regulation 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 has been prepared. It may be reviewed at the district office listed at the end of                     **FOR FURTHER INFORMATION CONTACT**                     above.                

                    d.                     *Unfunded Mandates Act.*                     This rule does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501*et seq.*). We have also found under Section 203 of the Act, that small governments will not be significantly or uniquely affected by this rule.                

# List of Subjects in 33 CFR Part 334

      - Danger zones
      - 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 § 334.782 to read as follows: 

§ 334.782 

                            (a)                             *The area.*                             The restricted area would encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area identified as AUSTAL, USA and the mean high water level within a rectangular shaped area on the east side of the Mobile River beginning at latitude 30°41′36.46″, longitude—88°2′2.70″; thence westerly to latitude 30°41′35.85″, longitude—88°2″; 5.12″; thence southerly to latitude 30°41′26.67″, longitude—88°2′3.62″; thence easterly to latitude 30°41′26.98″, longitude—88°2′1.81″ ; thence northerly along the easterly shoreline to the point of origin.                        

                            (b)                             *The regulations.*                             (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, Maine or his/her authorized representative.                        

(2) The restricted area is in effect twenty four hours per day and seven days a week (24/7).

(3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, Maine, or his/her authorized representative on Marine Communication Channel 16.

                            (c)                             *Enforcement.*                             The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, Maine, and/or such agencies or persons as he/she may designate.                        

      ( print page 48153)    
Dated: September 17, 2009.

Michael G. Ensch,

Chief, Operations,  Directorate of Civil Works. 

[FR Doc. E9-22825 Filed 9-21-09; 8:45 am]

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