[Federal Register Volume 69, Number 186 (Monday, September 27, 2004)]
[Proposed Rules]
[Pages 57662-57664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21540]


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DEPARTMENT OF DEFENSE

Department of the Army; Corps of Engineers

33 CFR Part 325

RIN 0710-AA51


Processing of Department of the Army Permits; Procedures for the 
Protection of Historic Properties

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is issuing an advance 
notice of proposed rulemaking (ANPRM) to obtain early comment on issues 
related to fulfilling the requirements of Section 106 of the National 
Historic Preservation Act in the Corps Regulatory Program. 
Specifically, we are soliciting comments on how our permit application 
processing procedures should be revised as a result of the 1992 
amendments to the National Historic Preservation Act and the Advisory 
Council on Historic Preservation's revised regulations on protection of 
historic property. We are also soliciting suggestions for facilitating 
government-to-government consultation with American Indian and Alaska 
Native governments, as well as consultation with State Historic 
Preservation Officers, Tribal Historic Preservation Officers, Native 
Hawaiian organizations, interested organizations, the regulated public, 
and other interested parties during the rulemaking process. Comments 
received in response to this ANPRM will be used to determine the course 
of action for revising our permit processing procedures for the 
protection of historic properties.

DATES: Submit comments on or before November 26, 2004.

ADDRESSES: Written comments should be sent to the U.S. Army Corps of 
Engineers, Attn: CECW-MVD (David B. Olson), 441 ``G'' Street, NW., 
Washington, DC 20314-1000, or by e-mail to 
[email protected]. Electronic comments should be 
submitted in ASCII format or portable document format, to ensure that 
those comments can be read. Electronic files should avoid the use of 
special characters and any form of encryption, and be free of any 
defects or viruses. Consideration will be given to all comments 
received within 60 days of the date of publication of this notice.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or 
access the U.S. Army Corps of Engineers Regulatory home page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Army Corps of Engineers (Corps) issues Department of the 
Army (DA) permits pursuant to Section 404 of the Clean Water Act (33 
U.S.C. 1344), Section 10 of the Rivers and Harbors Act of 1899 (33 
U.S.C. 403), and Section 103 of the Marine Protection, Research, and 
Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) for certain 
activities in waters of the United States. The procedures for 
processing DA permits are found at 33 CFR part 325. We issue 
approximately 7,000 individual permits and 78,000 general permit 
verifications each year. In addition, many minor activities are 
authorized each year by non-reporting general permits.
    On June 29, 1990 (55 FR 27000), we issued regulations at 33 CFR 
part 325, Appendix C to establish procedures to fulfill the 
requirements of Section 106 of the National Historic Preservation Act 
(NHPA) and other historic preservation laws applicable to the Corps 
Regulatory Program. Since Appendix C was issued, the NHPA was amended 
in 1992 and the Advisory Council on Historic Preservation (ACHP) 
revised its regulations at 36 CFR part 800 on December 12, 2000 (65 FR 
77698), and July 6, 2004 (69 FR 40544).
    In the March 8, 2002, issue of the Federal Register (67 FR 10822) 
we published a notice to solicit comments on how the Corps should 
address the changes to the NHPA and 36 CFR part 800. In response to 
that notice, we received 41 comments. Comments were received from 
Indian tribes, State Historic Preservation Officers, historic 
preservation organizations, industry groups, and individuals. Most

[[Page 57663]]

commenters expressed support for revising Appendix C to address the 
1992 amendments to the NHPA and the ACHP's revised regulations at 36 
CFR part 800. Many commenters provided specific recommendations for 
revising Appendix C.
    After considering the comments received in response to the March 8, 
2002, Federal Register notice, and reviewing the Federal agency program 
alternatives at 36 CFR 800.14, we identified several options for 
updating our permit application processing procedures to address the 
1992 amendments to the NHPA and the revised 36 CFR part 800. The 
options we identified are:
     Revise Appendix C to incorporate the current requirements 
and procedures at 36 CFR part 800.
     Revoke Appendix C and use 36 CFR part 800, subpart B when 
reviewing individual permit applications, and utilize Federal agency 
program alternatives at 36 CFR 800.14 for general permits.
     Revoke Appendix C and use 36 CFR part 800, subpart B for 
all individual permits and general permits.
     Revoke Appendix C and develop non-regulation alternative 
procedures in accordance with 36 CFR 800.14.
    We are requesting comments on the appropriateness and feasibility 
of these options. We are also inviting suggestions for other options 
that we have not identified. In addition, we are seeking 
recommendations for the preferred option that would be pursued through 
the Administrative Procedures Act rulemaking process to revise 
Regulatory Program procedures for the protection of historic 
properties.
    We are also soliciting comments and recommendations on appropriate 
means for fulfilling our government-to-government consultation 
responsibilities with American Indian and Alaskan Native governments 
during the rulemaking process. Please see the section below entitled 
``Executive Order 13175.''
    We are also seeking comments and suggestions on how to effectively 
consult with other interested parties, such as non-governmental 
organizations, industry groups, and permit applicant groups, during the 
rulemaking process.
    An objective of this rulemaking effort is to revise our permit 
processing procedures to afford appropriate protection of historic 
properties, while providing efficient and timely review of permit 
applications.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. Therefore, the use of ``we'' in this 
notice refers the Corps and the use of ``you'' refers to the reader. We 
have also used the active voice, short sentences, and common everyday 
terms except for necessary technical terms.

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Corps must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that this ANPRM is not a ``significant regulatory action'' because it 
does not meet any of these four criteria. The ANPRM initiates the 
rulemaking process for revising our permit processing procedures for 
the protection of historic properties.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (published at 65 FR 67249 on November 
9, 2000), requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations and other policy statements or actions 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.''
    This ANPRM and subsequent related rulemaking actions will have 
tribal implications. These rulemaking actions will have direct effects 
on tribal governments, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes. The 
1992 amendments to the NHPA and the ACHP's revised regulations at 36 
CFR part 800 require consultation with Indian tribes when Federal 
undertakings, such as activities that require DA permits, may affect 
historic properties on tribal lands or historic properties of religious 
and cultural significance to Indian tribes located off tribal lands. 
Therefore, revising our permit processing procedures for the protection 
of historic properties will have tribal implications.
    We are soliciting comments and suggestions for facilitating 
government-to-government consultation with American Indian and Alaskan 
Native governments during this rulemaking process. The preamble for the 
final regulation resulting from this rulemaking process will contain 
the tribal summary impact statement required by the Executive Order.
    On October 20, 1998, the Department of Defense issued its 
``American Indian and Alaska Native Policy'' (DoD policy). An annotated 
version of the DoD policy is available at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/DoDPolicy.pdf. We are soliciting comments 
on the DoD policy's applicability to the Corps Regulatory Program, but 
we are not seeking comments on the DoD policy itself.

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities

[[Page 57664]]

because of their race, color, or national origin.
    This ANPRM is not expected to negatively impact any community, and 
therefore is not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities. This ANPRM will 
assist us in revising our permit processing procedures for the 
protection of historic properties, some of which are located in 
minority or low-income communities.

Environmental Documentation

    We prepare appropriate environmental documentation, including 
Environmental Impact Statements when required, for all permit 
decisions. Therefore, environmental documentation under the National 
Environmental Policy Act is not required for this ANPRM. Appropriate 
environmental documentation has been, or will be, prepared for each 
action that is subjected to the permit application review process.

    Dated: September 20, 2004.
John Paul Woodley, Jr.,
Assistant Secretary for the Army (Civil Works), Department of the Army.
[FR Doc. 04-21540 Filed 9-24-04; 8:45 am]
BILLING CODE 3710-92-P