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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:

Notice of proposed rulemaking and request for comments.

# SUMMARY:

The U.S. Army Corps of Engineers is proposing to establish a new danger zone in the waters adjacent to the existing small arms range (SAR) on Naval Air Station North Island (NASNI) located in San Diego, California. The proposed regulation would prohibit any activity by the public within the danger zone. The new danger zone is necessary to bring the existing SAR into compliance with the Naval Facilities Engineering Command MIL-HDBK 10-27/3B by preventing any SAR ricochet rounds from posing a hazard to passing water traffic.

# DATES:

Written comments must be submitted by August 10, 2009.

# ADDRESSES:

You may submit comments, identified by docket number COE-2009-0033, 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-2009-0033, 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-2009-0033. 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                               ( print page 32819)                            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 Ms. Kari Coler, U.S. Army Corps of Engineers, Los Angeles District, Regulatory Division, at 760-602-4834 or Ms. Therese O'Rourke, U.S. Army Corps of Engineers, Los Angeles District, Regulatory Division, at 760-602-4830.

# SUPPLEMENTARY INFORMATION:

In response to a request from the Department of the 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 proposing to amend the regulations at 33 CFR part 334 to establish a new danger zone. The proposed danger zone will prohibit access to waters adjacent to the SAR located on NASNI without prior written permission from the Commander, Navy Region Southwest or a designee, thereby ensuring that no threat is posed to passing water traffic due to ricochet rounds.

## 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.*                     This 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 public notice comment period, the Corps expects that this danger zone would have practically no economic impact on the public, and minimal 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 the proposed site for the danger zone is located in the Pacific Ocean and vessels may navigate around the prohibited 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 the                     **FOR FURTHER INFORMATION CONTACT**                     section, above.                

                    d.                     *Unfunded Mandates Act.*                     This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private section mandate and it is not subject to the requirements of either section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.                

# List of Subjects in 33 CFR Part 334

      - Danger zones
      - Marine safety
      - Navigation (water)
      - Restricted areas
      - Waterways

For the reasons stated 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 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. Add § 334.866 to read as follows:

§ 334.866

                            (a)                             *The area.*                             The danger zone shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, in the Pacific Ocean contiguous to the existing small arms range located on Naval Air Station North Island, delineated as a 206.1 acre trapezium (quadrilateral with no parallel sides) beginning at latitude 32°41′13″ N., longitude 117°′12′45″ W.; thence easterly, along mean high water, to latitude 32°41′14″ N., longitude 117°12′32″ W.; thence southerly to latitude 32°40′31″ N., longitude 117°12′12″ W.; thence westerly to latitude 32°40′25″ N., longitude 117°12′43″ W.; thence northerly, landward, to the point of origin.                        

                            (b)                             *The regulations.*                             No person, vessel, craft, article, or thing, except those under the supervision of the military or naval authority, shall enter the area without the permission of the enforcing agency or his/her designee. The restriction shall apply at all times.                        

                            (c)                             *Enforcement.*                             The regulation in this section shall be enforced by the Commander, Navy Region Southwest, and such agencies and persons as he/she may designate.                        

Dated: July 2, 2009.

Approved.

Michael G. Ensch,

Chief, Operations, Directorate of Civil Works.

[FR Doc. E9-16235 Filed 7-8-09; 8:45 am]

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