[Federal Register Volume 74, Number 51 (Wednesday, March 18, 2009)]
[Proposed Rules]
[Pages 11507-11509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5746]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334


Restricted Areas at Cape Canaveral Air Force Station, Patrick 
AFB, FL

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: [email protected]. 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

[[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 Sec.  334.540, removing Sec.  334.550, and adding 
Sec.  334.595. The proposal includes the removal of Sec.  334.550 since 
it would now be completely encompassed by the expanded area of Sec.  
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 Sec.  334.540 to read as follows:


Sec.  334.540  Banana River at the Eastern Range, 45th Space Wing, Cape 
Canaveral Air Force Station, FL.; Restricted Area.

    (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[deg]25.17 N, 
longitude 80[deg]36.24 W, thence directly to latitude 28[deg]25.18' N, 
longitude 80[deg]36.65' W, thence directly to latitude 28[deg]25.25' N, 
longitude 80[deg]36.66' W, thence directly to latitude 28[deg]25.22' N, 
longitude 80[deg]38.36' W, thence directly to latitude 28[deg]26.23' N, 
longitude 80[deg]38.25' W, thence directly to latitude 28[deg]26.23' N, 
longitude 80[deg]38.47' W, thence to reach the south side of the 
Kennedy Space Center NASA Causeway East Roadway at approximately 
latitude 28[deg]30.74' N, longitude 80[deg]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.


Sec.  334.550  [Removed]

    3. Remove Sec.  334.550.
    4. Add Sec.  334.595 to read as follows:


Sec.  334.595  Atlantic Ocean off Cape Canaveral; 45th Space Wing, Cape 
Canaveral Air Force Station, FL.; Restricted Area.

    (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[deg]35.008' N, longitude 80[deg]34.448' W, thence directly 
to latitude 28[deg]35.617' N, longitude 80[deg]33.140' W, thence 
following the mean high water line southerly at a distance of 1.5 miles 
to a point at latitude 28[deg]24.253' N longitude 80[deg]33.658' W, 
thence proceeding westerly to terminate at a point on the shoreline at 
latitude 28[deg]24.69' N, longitude 80[deg]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

[[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[deg]35.0' N, longitude 
80[deg]34.8' W and from a 90-foot pole near the shoreline at 
approximately latitude 28[deg]25.3' N, longitude 80[deg]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]
BILLING CODE 3710-92-P