Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### 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:

Final rule.

# SUMMARY:

                        The U.S. Army Corps of Engineers (Corps) is amending its restricted area regulations 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 Air Force Base (AFB), Florida. We are also removing an existing restricted area in the Banana River at CCAFS. CCAFS Command,                               ( print page 36401)                            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 enhancement of these capabilities is necessary to counter postulated threats to CCAFS.                    

# DATES:

*Effective Date:*                         August 24, 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. 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 revising § 334.540, removing § 334.550, and adding § 334.595. The modifications to the regulations are described below.

                    The proposed rule was published in the March 18, 2009, issue of the                     **Federal Register**                     (74 FR 11507), and its regulations.gov docket number is COE-2009-0001. No comments were received in response to the proposed rule.                

The amendment to this regulation 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.*                     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 this rule would have practically no economic impact on the public, or result in no 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. 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 the permission of the Commander, 45th Space Wing or his/her designee.                                  ( print page 36402)    

(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: July 19, 2009.

Michael G. Ensch,

Chief, Operations, Directorate of Civil Works.

[FR Doc. E9-17551 Filed 7-22-09; 8:45 am]

BILLING CODE 3710-92-P