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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:

Direct final rule.

# SUMMARY:

The U.S. Army requested that the U.S. Army Corps of Engineers (Corps) revise the regulation for the restricted area in the Cape Fear River and its tributaries at Sunny Point Army Terminal, Brunswick County, North Carolina, by renaming the marker buoys and specifying the latitude and longitude for those buoys. There are no other changes proposed for this restricted area regulation. The purpose of the rule is to correct the buoys designating the boundary of the restricted area. The restricted area provides security for the facility, and prevents acts of terrorism, sabotage, or other criminal acts against the facility, including vessels loading and offloading at the Sunny Point Army Terminal.

# DATES:

                        This rule is effective November 1, 2010 without further notice, unless the Corps receives adverse comment by September 30, 2010. If we receive such adverse comment, we will publish a timely withdrawal in the                         **Federal Register**                         informing the public that this rule will not take effect.                    

# ADDRESSES:

You may submit comments, identified by docket number COE-2010-0015, 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-2010-0015 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-2010-0015. All comments received will be included in the public docket without change and may be made available on-line at                         *http://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 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 Richard K. Spencer, U.S. Army Corps of Engineers, Wilmington District, at 910-251-4172.

# SUPPLEMENTARY INFORMATION:

By letter dated February 22, 2010, the Corps of Engineers was informed that the federal channel navigation buoys that mark the Cape Fear River main navigation channel and the boundaries of the restricted zone at the Sunny Point Army Terminal have been replaced with new buoys. The Army requests that the rule be revised because the current federal channel navigation buoys identification numbers no longer correspond to the regulation for the restricted area at the Sunny Point Army Terminal. In response to this request by the U.S. Army, and pursuant to its authorities under 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 revising the restricted area regulation.

The Corps is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comment.

                    In the “Proposed Rules” section of today's                     **Federal Register**                    , we are publishing a separate document that will serve as the proposal to revise this restricted area regulation if adverse comments are filed. This rule will be effective on November 1, 2010 without further notice unless we receive adverse comment by September 30, 2010 . If we receive adverse comment, we will publish a timely withdrawal in the                     **Federal Register**                     informing the public that the direct final rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.                

## Procedural Requirements

                    a.                     *Review Under Executive Order 12866.*                     This 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.*                     This 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 has determined that revising this restricted area regulation would have practically no economic impact on the public, or result in no anticipated navigational hazard or interference with existing waterway traffic. This will have no significant economic impact on small entities.                          ( print page 53198)    

                    c.                     *Review Under the National Environmental Policy Act.*                     The Corps expects that the final rule 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 and it may be reviewed at the District office listed at the end of the                     **FOR FURTHER INFORMATION CONTACT,**                     above. If we receive adverse comment, an environmental assessment will be prepared for the subsequent final rule.                

                    d.                     *Unfunded Mandates Act.*                     The final rule does not impose an enforceable duty among the private sector and, therefore, are not a Federal private sector mandate and are 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 rulemaking.                

# 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 33 CFR 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 § 334.450 as follows: 

§ 334.450 

                            (a)                             *The area.*                             That portion of Cape Fear River due west of the main ship channel extending from U.S. Coast Guard buoy No. 35 (34°02′03.218″ N, 077°56′28.755″ W) at the north approach channel to Sunny Point Army Terminal to U.S. Coast Guard buoy No. 27 (33°58′16.12″ N, 077°56′59.736″ W) at the south approach channel to Sunny Point Army Terminal and all waters of its tributaries therein.                        

(b) Except in cases of extreme emergency, all persons or vessels of any size or rafts other than those authorized by the Commander, Sunny Point Army Terminal, are prohibited from entering this area without prior permission of the enforcing agency.

(c) The regulations in this section shall be enforced by the Commander, Sunny Point Army Terminal, Southport, North Carolina, and such agencies as he/she may designate.

Dated: August 13, 2010.

Michael G. Ensch,

Chief, Operations, Directorate of Civil Works.

[FR Doc. 2010-21752 Filed 8-30-10; 8:45 am]

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