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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 U.S. Army Corps of Engineers (Corps) is proposing to amend the existing regulations at 33 U.S.C. 334 to enlarge an existing restricted area in the Banana River and to establish a new restricted area in the Atlantic Ocean for the Cape Canaveral Air Force Station (CCAFS), located on Patrick AFB, Florida. We are also proposing to remove an existing restricted area in the Banana River at CCAFS. CCAFS Command, located at Patrick AFB, Florida, is responding to Department of Defense (DoD) security assessments which have identified a need for CCAFS to have the capability to secure their shoreline. The proposed enhancement of these capabilities is necessary to counter postulated threats to CCAFS. 

# DATES:

Written comments must be submitted on or before April 17, 2009. 

# ADDRESSES:

You may submit comments, identified by docket number COE-2009-0001, 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-2009-0001, in the subject line of the message.                     

*Mail:*                         U.S. Army Corps of Engineers, Attn: CECW-CO (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-2009-0001. 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 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                               ( print page 11508)                            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. Jon M. Griffin, U.S. Army Corps of Engineers, Jacksonville District, Regulatory Division, at 904-232-1680. 

# 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 is proposing to amend the regulations in 33 CFR part 334 by modifying § 334.540, removing § 334.550, and adding § 334.595. The proposal includes the removal of § 334.550 since it would now be completely encompassed by the expanded area of § 334.540. 

The proposed amendments will allow the Commanding Officer, CCAFS to restrict passage of persons, watercraft, and vessels in waters contiguous to this Command, thereby ensuring that DoD identified security enhancements can be met. 

### Procedural Requirements 

                    a.                     *Review Under Executive Order 12866.*                     The 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.*                     The 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 comment period, the Corps expects that the economic impact of the amendment of this restricted area would have practically no impact on the public, or result in 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 may be reviewed at 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, 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 proposes to amend 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. Revise § 334.540 to read as follows: 

§ 334.540 

                            (a)                             *The area.*                             The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the Banana River contiguous to the area offshore of Cape Canaveral Air Force Station, Florida. The area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the southeast portion of the area, at approximately latitude 28°25.17 N, longitude 80°36.24 W, thence directly to latitude 28°25.18′ N, longitude 80°36.65′ W, thence directly to latitude 28°25.25′ N, longitude 80°36.66′ W, thence directly to latitude 28°25.22′ N, longitude 80°38.36′ W, thence directly to latitude 28°26.23′ N, longitude 80°38.25′ W, thence directly to latitude 28°26.23′ N, longitude 80°38.47′ W, thence to reach the south side of the Kennedy Space Center NASA Causeway East Roadway at approximately latitude 28°30.74′ N, longitude 80°36.63′ W.                         

                            (b)                             *The regulation.*                             (1) The area described in paragraph (a) of this section will be closed when it is deemed necessary by the Commander, 45th Space Wing or his/her designee to address any perceived threat to the local area. With the exception of local, State and federal law enforcement entities, all persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the restricted area when it is closed without the permission of the Commander, 45th Space Wing or his/her designee.                         

(2) Due to the nature of this restricted area, closures may occur with very little advance notice. Closure of the area shall be noticed by the display of a red beacon located at the southern entrance to Cape Canaveral Air Force Station. Information will be provided via Marine Radio broadcast during the duration of the area closure. 

                            (c)                             *Enforcement.*                             The regulations in this section shall be enforced by the Commander, 45th Space Wing, Patrick Air Force Base, Florida and/or such persons or agencies as he/she may designate.                         

§ 334.550 

3. Remove § 334.550. 

4. Add § 334.595 to read as follows: 

§ 334.595 

                            (a)                             *The area.*                             The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area offshore of Cape Canaveral Air Force Station, Florida. The area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the northwest portion of the area, at latitude 28°35.008′ N, longitude 80°34.448′ W, thence directly to latitude 28°35.617′ N, longitude 80°33.140′ W, thence following the mean high water line southerly at a distance of 1.5 miles to a point at latitude 28°24.253′ N longitude 80°33.658′ W, thence proceeding westerly to terminate at a point on the shoreline at latitude 28°24.69′ N, longitude 80°35.05′ W.                         

                            (b)                             *The regulation.*                             (1) The area described in paragraph (a) of this section will be closed when it is deemed necessary by the Commander, 45th Space Wing or his/her designee to address any perceived threat to the local area. With the exception of local, State and federal law enforcement entities, all persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the restricted area when it is closed without                                   ( print page 11509)                                the permission of the Commander, 45th Space Wing or his/her designee.                         

(2) Due to the nature of this restricted area, closures may occur with very little advance notice. Closure of the area shall be noticed by the display of a red ball and red beacon from a 90-foot pole near the shoreline at approximately latitude 28°35.0′ N, longitude 80°34.8′ W and from a 90-foot pole near the shoreline at approximately latitude 28°25.3′ N, longitude 80°35.0′ W. Information will be provided via Marine Radio broadcast and a warning statement displayed on an electronic marquee sign located on the north side of the Port Canaveral ship channel between the Trident and Poseidon Wharf during the duration of the area closure. 

                            (c)                             *Enforcement.*                             The regulations in this section shall be enforced by the Commander, 45th Space Wing, Patrick Air Force Base, Florida and/or such persons or agencies as he/she may designate.                         

                            Dated:                             *March 9, 2009.*

Michael Ensch, 

Chief, Operations, Directorate of Civil Works. 

 [FR Doc. E9-5746 Filed 3-17-09; 8:45 am] 

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