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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, DoD.

# ACTION:

Final rule.

# SUMMARY:

The U.S. Army Corps of Engineers (Corps) is amending seven existing regulations to incorporate changes to the types of restriction, the area affected by the restriction, and/or the administration of six restricted areas and one danger zone. Additionally, the Corps is establishing two new restricted areas. The restricted areas and danger zone are located within the State of Florida. The amended regulations will enable the affected units of the U.S. Military to enhance safety and security around active military establishments. These regulations are necessary to safeguard military vessels and United States government facilities from sabotage and other subversive acts, accidents, or incidents of similar nature. These regulations are also necessary to protect the public from potentially hazardous conditions that may exist as a result of military use of the area.

# EFFECTIVE DATE:

December 7, 2005.

# ADDRESSES:

U.S. Army Corps of Engineers, ATTN: CECW-CO, 441 G Street, NW., Washington, DC 20314-1000.

# FOR FURTHER INFORMATION CONTACT:

Mr. David Olson, U.S. Army Corps of Engineers, Headquarters, 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 amending the regulations in 33 CFR part 334 by modifying the area or restrictions at sections 334.560, 334.580, 334.610, 334.760, 334.775, 334.778, and 334.780. Additionally, the Corps is establishing two new restricted areas at § 334.635 and § 334.515. The modification to each existing restricted area and danger zone is described in the body of this notice along with a description of the two newly established restricted areas. The proposed rule was published in the March 25, 2005, issue of the                     **Federal Register**                     (70 FR 15247).                

These amendments to the regulations will allow the Commanding Office at each of the affected military units to restrict passage of persons, watercraft, and vessels at his or her discretion in the interest of National Security until such time he or she determines such restrictions may be terminated.

In response to the proposed rule, two commenters raised concerns about the amendment of § 334.540, specifically the potential loss of public access to areas presently open to public recreational fishing. These issues are still being considered and the proposed changes to § 334.540 are not included in this final rule. Therefore, the restricted area at § 334.550 will not be disestablished, because we proposed to remove that section only if the proposed changes to § 334.540 were adopted.

## Procedural Requirements 

                    a.                     *Review Under Executive Order 12866.*                     These rules are issued with respect to a military function of the United States and the provisions of Executive Order 12866 do not apply.                 

                    b.                     *Review Under the Regulatory Flexibility Act.*                     These rules have been reviewed under the Regulatory Flexibility Act (Public Law 96-354; 5 U.S.C. 601) 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). We have concluded that the proposed modifications to the existing restricted areas and danger zone and the establishment of two new restricted areas would have practically no economic impact on the public, and would create no anticipated navigational hazard or interference with existing waterway traffic. Accordingly, we certify that these rules will not have a significant economic impact on a substantial number of small entities.                 

                    c.                     *Review Under the National Environmental Policy Act.*                     We have concluded, based on the minor nature of the changes, that these amendments to the danger zone and restricted areas will not be a major Federal action having a significant impact on the quality of the human environment, and preparation of an environmental impact statement is not required.                

                    d.                     *Unfunded Mandates Act.*                     These rules do 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                           ( print page 67371)                        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 portions of 33 CFR part 334 as follows:

# PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS

1. The authority citation for 33 CFR 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 § 334.515 to read as follows: 

§ 334.515 

                            (a)                             *The area.*                             The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR 329, within the area identified at the U.S. Marine Corps Slip (also identified as Back River on many nautical maps) located on the southeastern side of Blount Island, Jacksonville, Florida. The entrance to the U.S. Marine Corps Slip is described as commencing from a line drawn between the southwesterly most shore point (latitude 30°23′34″ N., longitude 81°30′52″ W.) and the southeasterly most shore point (latitude 30°23′38″ N., longitude 81°30′36″ W.).                        

                            (b)                             *The regulations.*                             (1) All persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the area described in paragraph (a) of this section for any reason without the permission of the Commanding Officer, Blount Island Command, Jacksonville, Florida, or his/her authorized representative. The cognizant Captain of the Port (COTP) or Federal Maritime Security Coordinator (FMSC), in performance of Homeland Security responsibilities, may from time to time, need to investigate or cause to investigate incidents of national security with the Blount Island Command Restricted Area. Authority to enter the restricted area under mission critical situations is herby granted to the COTP or FMSC, or his representative. Situations that require COTP or FMSC to immediately access the restricted area shall be reported to the Commanding Officer, Blount Island Command as soon as practicable.                        

(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.

                            (c)                             *Enforcement.*                             The regulations in this section shall be enforced by the Commanding Officer, Blount Island Command, Jacksonville, Florida, and/or such persons or agencies as he/she may designate.                        

3. Amend § 334.560 by revising paragraphs (a) and (b)(2) to read as follows: 

§ 334.560 

                            (a)                             *The area.*                             The waters within an area beginning at a point located at latitude 28°16′19″ N., longitude 80°36′28″ W.; proceed west to latitude 28°16′19″ N., longitude 80°36′35″ W.; thence, southwesterly to latitude 28°14′34″ N., longitude 80°37′08″ W.; thence, southerly to latitude 28°12′44″ N., longitude 80°37′18″ W.; thence, east to latitude 28°12′44″ N., longitude 80°37′11″ W. This encompasses an area reaching from the northern extent described to the southern extent described and extending from the mean high water line waterward a minimum distance of approximately 600 feet.                        

                            (b)                             *The regulations*. (1) * * *                        

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

4. Amend § 334.580 by revising paragraph (b) to read as follows: 

§ 334.580 

* * * * *

                            (b)                             *The regulations.*                             (1) Anchoring, trawling, dredging, or attaching any object to the submerged sea bottom shall be prohibited in the above described area.                        

(2) The regulations of this section shall be enforced by the Facility Director, Naval Surface Warfare Center, Detachment Dania, Florida, and such agencies as he/she may designate.

5. Amend § 334.610 by revising paragraph (a)(6) to read as follows: 

§ 334.610 

                            (a)                             *The areas*. * * *                        

                            (6)                             *Danger zone.*                             All waters within an area along the northeast side of the Naval Air Station on Boca Chica Key defined by a line beginning at latitude 24°35.472′ N., longitude 81°41.824′ W.; thence proceed in a northerly direction to a point at latitude 24°36.289′ N., longitude 81°41.437′ W.; thence proceed westerly to a point at latitude 24°36.392′ N., longitude 81°41.970′ W.; thence to a point on shore at latitude 24°35.698′ N., longitude 81°41.981′ W.                        

* * * * *

6. Add § 334.635 to read as follows: 

§ 334.635 

                            (a)                             *The area.*                             The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR 329, within the following boundaries. Commencing from the shoreline at the northeast portion of the base at latitude 27°51′52.901″ N., longitude 82°29′18.329″ W., thence directly to latitude 27°52′00.672″ N., longitude 82°28′51.196″ W., thence directly to latitude 27°51′28.859″ N., longitude 82°28′10.412″ W., thence directly to latitude 27°51′01.067″ N., longitude 82°27′45.355″ W., thence directly to latitude 27°50′43.248″ N., longitude 82°27′36.491″ W., thence directly to latitude 27°50′19.817″ N., longitude 82°27′35.466″ W., thence directly to latitude 27°49′38.865″ N., longitude 82°27′43.642″ W., thence directly to latitude 27°49′20.204″ N., longitude 82°27′47.517″ W., thence directly to latitude 27°49′06.112″ N., longitude 82°27′52.750″ W., thence directly to latitude 27°48′52.791″ N., longitude 82°28′05.943″ W., thence directly to latitude 27°48′45.406″ N., longitude 82°28′32.309″ W., thence directly to latitude 27°48′52.162″ N., longitude 82°29′26.672″ W., thence directly to latitude 27°49′03.600″ N., longitude 82°30′23.629″ W., thence directly to latitude 27°48′44.820″ N., longitude 82°31′10.000″ W., thence directly to latitude 27°49′09.350″ N., longitude 82°32′24.556″ W., thence directly to latitude 27°49′38.620″ N., longitude 82°33′02.444″ W., thence directly to latitude 27°49′56.963″ N., longitude 82°32′45.023″ W., thence directly to latitude 27°50′05.447″ N., longitude 82°32′48.734″ W., thence directly to latitude 27°50′33.715″ N., longitude 82°32′45.220″ W., thence directly to a point on the western shore of the base at latitude 27°50′42.836″ N., longitude 82°32′10.972″ W. The restricted area will encompass an existing Danger Zone (§ 334.630).                        

                            (b)                             *The regulations.*                             (1) All persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the area described in paragraph (a) of this section for any reason without the permission of the Commander, MacDill Air Force Base, Florida, or his/her authorized representative.                        

(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.

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

      ( print page 67372)    
7. Revise § 334.760 to read as follows: 

§ 334.760 

                            (a)                             *The area.*                             The waters within an area beginning at a point located along the shore at the southern end of the facility designated by latitude 30°09′45.6″ N., longitude 85°44′20.6″ W.; thence proceed 100 feet waterward of the mean high water line directly to a point at latitude 30°09′46.8″ N., longitude 85°44′20.6″ W. From this position the line meanders irregularly, following the shoreline at a minimum distance of 100 feet from the mean high water line to a point at latitude 30°10′16.7″ N., longitude 85°45′01.2″ W. located east of the south side of the entrance to Alligator Bayou; thence directly across the entrance to a point at latitude 30°10′23.4″ N., longitude 85°45′05.7″ W. located east of the north side of the entrance to Alligator Bayou; thence continuing the northerly meandering, following the shoreline at a minimum distance of 100 feet from the mean high water line to a point at latitude 30°11′11.3″ N., longitude 85°45′02.8″ W.; thence directly to the shoreline to a point at latitude 30°11′12.3″ N., longitude 85°45′03.2″ W. This encompasses an area reaching from the southern extent described to the northern extent described and extending from the mean high water line waterward a minimum distance of approximately 100 feet.                        

                            (b)                             *The regulations.*                             (1) No vessel, person, or other craft shall enter, transit, anchor, drift or otherwise navigate within the area described in paragraph (a) of this section for any reason without written permission from the Officer in Charge, Naval Support Activity Panama City, Panama City Beach, Florida, or his/her authorized representative.                        

(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.

(3) The regulations in this section shall be enforced by the Officer in Charge, Naval Support Activity Panama City, Panama City Beach Florida, and such agencies as he/she may designate.

8. Revise § 334.775 to read as follows: 

§ 334.775 

                            (a)                             *The areas.*                             (1) Bounded by a line drawn in the direction of 180° T from the position latitude 30°20′44″ N., longitude 87°17′18″ W. (near the Naval Air Station, due south of the Officer′s Club) to position latitude 30°20′09″ N., longitude 87°17′18″ W. thence 94° T to position latitude 30°20′07″ N., longitude 87°16′41″ W., thence 49° T to position latitude 30°20′37″ N., longitude 87°16′01″ W. (southwest end of Lexington finger pier), thence along the shoreline to point of origin.                        

(2) The waters within an area enclosed by the following points: Beginning at latitude 30°21.58′ N., longitude 87°12.49′ W.; thence to latitude 30°20.25′ N., longitude 87°11.00′ W.; thence to latitude 30°20.28′ N., longitude 87°14.27′ W.; thence to the point of beginning. This encompasses a large triangular area north of Santa Rosa Island and west of the land area between Fair Point and Deer Point.

                            (b)                             *The restrictions.*                             (1) The area described in paragraph (a)(1) of this section will normally be in use Monday through Wednesday between 8 a.m. and 4 p.m. and one evening from 4 p.m. until 8 p.m., every other week.                        

(2) The area described in paragraph (a)(2) of this section will normally be utilized Wednesday through Friday between 8 a.m. and 4 p.m. for parasail operations.

(3) During those times that specific missions, exercises, or training operations are being conducted, the U.S. Navy vessels and/or crafts designated as essential to the operation(s) by proper U.S. Navy authority shall have the rights-of-way. All other vessels and crafts are required to keep clear of and remain 300 yards from all naval vessels engaged in said operations. Approaching within 300 yards of vessels and/or crafts while they are engaged in operations and/or training exercises is prohibited.

(4) Vessel traffic through the restricted area will remain open during operations and/or exercises; however, mariners shall exercise extreme caution and be on the lookout for swimmers, small craft and helicopters when transiting the area. It should be presumed by all mariners that Navy operations and/or exercises are being conducted whenever military craft and/or helicopters are operating within the restricted area.

(5) Any problems encountered regarding Navy operations/exercises within the restricted area should be addressed to “Navy Pensacola Command” on Channel 16 (156.6 MHz) for resolution and/or clarification.

(6) The regulations in this section shall be enforced by the Commander of the Naval Air Station, Pensacola, Florida, and such agencies as he/she may designate.

9. Amend § 334.778 by revising paragraph (b) to read as follows: 

§ 334.778 

* * * * *

                            (b)                             *The regulations.*                             (1) All persons, vessels, and other craft are prohibited from entering the waters described in paragraph (a) of this section for any reason. All vessels and craft, including pleasure vessels and craft (sailing, motorized, and/or rowed or self-propelled), private and commercial fishing vessels, other commercial vessels, barges, and all other vessels and craft, except vessels owned or operated by the United States and/or a Federal, State, or local law enforcement agency are restricted from transiting, anchoring, or drifting within the above described area, or within 500 feet of any quay, pier, wharf, or levee along the Naval Air Station Pensacola shoreline abutting, nor may such vessels or crafts or persons approach within 500 feet of any United States owned or operated vessel transiting, anchored, or moored within the waters described in paragraph (a) of this section. The Commanding Officer, Naval Air Station Pensacola, or his/her designee, or the Commanding Officer of a vessel of the United States operating within the said area, may grant special permission to a person, vessel, or craft to enter upon the waters subject to the restrictions aforementioned.                        

(2) The existing “Navy Channel” adjacent to the north shore of Magazine Point, by which vessels enter and egress Bayous Davenport and Grande into Pensacola Bay shall remain open to all craft except in those extraordinary circumstances where the Commanding Officer, N.A.S. or his/her designee determines that risk to the installation, its personnel, or property is so great and so imminent that closing the channel to all but designated military craft is required for security reasons, or as directed by higher authority. This section will not preclude the closure of the channel as part of a security exercise; however, such closures of said channel will be limited in duration and scope to the maximum extent so as not to interfere with the ability of private vessels to use the channel for navigation in public waters adjacent thereto not otherwise limited by this regulation.

(3) The regulations in this section shall be enforced by the Commanding Officer of the Naval Air Station, Pensacola, Florida, and such agencies he/she may designate.

10. Amend § 334.780 by revising paragraph (b) to read as follows: 

§ 334.780 

* * * * *
      ( print page 67373)    
                            (b)                             *The regulations.*                             (1) The area is established as a Naval Air Station small boat operations and training area.                        

(2) All persons, vessels, and other craft are prohibited from entering the waters described in paragraph (a) of this section for any reason. All vessels and craft, including pleasure vessels and craft (sailing, motorized, and/or rowed or self-propelled), private and commercial fishing vessels, other commercial vessels, barges, and all other vessels and craft, except vessels owned or operated by the United States and/or a Federal, State, or local law enforcement agency are restricted from entering, transiting, anchoring, drifting or otherwise navigating within the area described in paragraph (a) of this section.

(3) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station Pensacola and/or such persons or agencies he/she may designate.

Dated: November 1, 2005.

Gerald W. Barnes,

Chief, Operations Division, Directorate of Civil Works.

[FR Doc. 05-22049 Filed 11-4-05; 8:45 am]

BILLING CODE 3710-92-P