[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Proposed Rules]
[Pages 70927-70929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29633]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Chapter II


USACE's Plan for Retrospective Review Under E.O. 13563

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

ACTION: Notice of intent and request for comments.

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SUMMARY: The U.S. Army Corps of Engineers (USACE) is seeking public 
input on its plan to retrospectively review its Regulations 
implementing the USACE Regulatory Program at 33 CFR parts 320-332 and 
334. Executive Order 13563, ``Improving Regulation and Regulatory 
Review'' (E.O.), issued on January 18, 2011, directs Federal agencies 
to review existing significant regulations and identify those that can 
be made more effective or less burdensome in achieving regulatory 
objectives. The Regulations are essential for implementation of the 
Regulatory mission; thus, USACE believes they are a significant rule 
warranting review pursuant to E.O. 13563. The E.O. further directs each 
agency to periodically review its existing significant regulations to 
determine whether any such regulations should be modified, streamlined, 
expanded, or repealed so as to make the agency's regulatory program 
more effective or less burdensome in achieving the regulatory 
objectives. Section 404(e) of the Clean Water Act authorizes USACE to 
development general permits, including nationwide permits (NWPs), for 
minor activities in waters of the U.S. for a period of five years. 
Accordingly, every five years, USACE undergoes a reauthorization 
process for the NWP program and includes public notice and provides an 
opportunity for public hearing. Comments for the NWP program are 
submitted during the reauthorization process. Therefore, USACE is 
currently complying with the E.O. 13563 direction to periodically 
review its existing significant regulations. Other regulations will be 
reviewed on an as-needed basis in accordance with new laws, court 
cases, etc.

DATES: Written comments must be submitted on or before January 17, 
2012.

ADDRESSES: You may submit comments, identified by docket number COE-
2011-0028, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected] Include the docket number, 
COE-2011-0028, in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, ATTN: CECW-CO-R (Ms. Amy S. 
Klein), 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-2011-0028. 
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 
email. 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 email 
directly to the Corps without going through regulations.gov, your email 
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.

[[Page 70928]]


FOR FURTHER INFORMATION CONTACT: Ms. Amy S. Klein, Headquarters, U.S. 
Army Corps of Engineers, Operations and Regulatory Community of 
Practice, Washington, DC 20314-1000, by phone at (202) 761-4559 or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 
    Executive Order 13563, ``Improving Regulation and Regulatory 
Review'' (E.O.), was issued to improve regulation and regulatory 
review, which includes public participation, integration and 
innovation, flexible approaches, and science. Agencies shall consider 
how best to promote retrospective analysis of rules that may be 
outmoded, ineffective, insufficient, or excessively burdensome, and to 
modify, streamline, expand or repeal them. In accordance with the E.O., 
the USACE plan is to solicit comments on its Regulations to make the 
Regulatory Program more effective and less burdensome.
    The USACE Regulatory Program's regulations are found at 33 CFR 
parts 320-332 and 334. The current Regulations were published in the 
Federal Register on November 13, 1986 (51 FR 41206). These Regulations 
describe the fundamental procedures, policies, authorities, and 
guidelines of the U.S. Army Corps of Engineer's Regulatory Program. 
Since the 1986 Regulations were issued, parts of these regulations have 
been modified. The changes that have occurred since 1986 include, but 
are not limited to: the Nationwide Permit regulations at 33 CFR part 
330 were amended on November 22, 1991 (56 FR 59110); regulations 
governing the administrative appeal program at 33 CFR part 331 were 
added on March 9, 1999 (64 FR 11708) and March 28, 2000 (65 FR 16486); 
regulations addressing compensatory mitigation for losses of aquatic 
resources at 33 CFR part 332 were added on April 10, 2008 (73 FR 
19594); further revisions to the Clean Water Act regulatory definition 
of dredged material at 33 CFR part 323 were made on January 17, 2001 
(66 FR 4550); final revisions to the Clean Water Act definitions of 
fill materials and discharge of fill material at 33 CFR part 323 were 
made on May 9, 2002 (67 FR 31129); revisions to the Clean Water Act 
regulatory definition of ``discharge of dredged material'' Final Rule 
at 33 CFR part 323 were made on December 30, 2008 (73 FR 79641); 
updates regarding structures in fairways and anchorage areas at 33 CFR 
part 322 were added on Aug. 29, 1995 (60 FR 44761); a requirement for 
an avoidance, minimization and compensation statement in applications 
for activities involving discharge of dredged or fill material at 33 
CFR part 325 was added on April 10, 2008 (73 FR 19670); amended 
Administrative Penalties on June 25, 2004 (69 FR 35518; 33 CFR part 
326); the civil monetary penalty inflation adjustment rule at 33 CFR 
part 326 was added on June 25, 2004 (69 FR 35515); minor editorial 
changes to reflect the change in title of the National Ocean Service 
and address at 33 CFR part 325 were made on May 13, 1997 (62 FR 26230). 
In accordance with the E.O., the USACE plan is to solicit comments 
regarding the questions posed below in the Proposal Section in order to 
achieve the goals of the E.O. to make regulations more effective and 
less burdensome.
    The E.O. further directs each agency to periodically review its 
existing significant regulations to determine whether any such 
regulations should be modified, streamlined, expanded, or repealed to 
make the agency's regulatory program more effective or less burdensome 
in achieving the regulatory objectives. The USACE is proposing the 
existing five-year reauthorization process of the NWPs, general 
conditions, and definitions as the periodic review of regulations.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States. Activities authorized by 
NWPs must be similar in nature, cause only minimal adverse 
environmental effects when performed separately, and cause only minimal 
cumulative adverse effect on the aquatic environment. The NWP program 
is designed to provide timely authorizations for the regulated public 
while protecting the Nation's aquatic resources. The NWP program allows 
the Corps to authorize activities with minimal adverse environmental 
impacts on the aquatic environment in a timely manner. The NWP program 
also allows the Corps to focus its limited resources on more extensive 
evaluation of projects that have the potential for causing 
environmentally damaging adverse effects.
    Each five-year review of the NWPs allows for revision of the NWPs, 
general conditions, and definitions to facilitate clarity for the 
regulated public, government personnel, and interested parties, while 
ensuring protection of the aquatic environment. Making the text of the 
NWPs clearer and easier to understand also facilitates compliance with 
these permits, which benefits the aquatic environment.
    During the NWP reissuance process, there is a request for public 
comments published in the Federal Register, which complies with the 
E.O. general principle of allowing for public participation and an open 
exchange of ideas. While anyone, at any time, may submit suggestions to 
Corps Headquarters for new NWPs or changes to existing NWPs, comments 
for the NWP program are normally submitted during the reauthorization 
process; the most recent notice requesting comments on the NWP program 
occurred in the Federal Register published on February 16, 2011 (76 FR 
9174), with the comment period ending on April 18, 2011. Therefore, 
USACE is currently complying with the E.O. 13563 direction to 
periodically review its existing significant regulations. However, 
there may be additional ways in which the NWP reauthorization process 
may further comply with E.O. 13563.
    The E.O.'s intent is to ensure that regulations are accessible, 
consistent, written in plain language and are easy to understand, while 
protecting public health, welfare, safety, and our environment while 
promoting economic growth, innovation, competitiveness, and job 
creation. These goals are what the Regulations improvement and the 
periodic reissuance of the NWP program would accomplish.

Proposal

    To comply with E.O. 13563, the publication of the Federal Register 
notice to solicit comments on how the Regulations should be evaluated 
for modification, streamlining, expansion, or repeal is the USACE's 
first step to develop a plan that ensures that the agency's regulations 
are effective and not burdensome. Furthermore, comments are requested 
pursuant to the E.O. directing each agency to periodically review its 
existing significant regulations to determine whether any such 
regulations should be modified, streamlined, expanded, or repealed so 
as to make the agency's regulatory program more effective or less 
burdensome in achieving the regulatory objectives. The publication of 
the Federal Register notice to solicit comments on the existing NWP 
Program re-authorization process every five years is part of USACE's 
plan to ensure the periodic review of regulations.
    Input from a wide variety of constituents is important, and 
applicants, affected landowners, the general public, consultants, 
tribal, state and local government, and other agencies are likely to 
have knowledge about the full effects of the regulations

[[Page 70929]]

on people and the economy, and to offer ideas on how to streamline or 
improve them. This request for information will inform the USACE's 
decision on whether adjustment to the regulation is necessary and 
appropriate, and whether additional guidance, education, or outreach 
would better assist the Regulation's users, agencies, and the public to 
address critical issues.
    The URL for a Web site that includes the Regulations, as well as 
all of the Corps Regulatory Program's current regulations and 
supporting program data and information is http://www.usace.army.mil/CECW/Pages/reg_materials.aspx. Furthermore, each of the 38 Corps 
districts has issued local public notices announcing the publication of 
this Federal Register notice and the request for comments. The Corps 
will evaluate all comments received to develop its list of review 
priorities, and will publish a notice in the Federal Register that 
summarizes the comments received and lists the priorities. The Web site 
will be updated as proposed revisions and final revisions to its 
regulations occur.
    Please email your response to the questions below to 
[email protected] and be sure to number your responses 
in association with each question. These questions are not intended to 
be exhaustive, and respondents are encouraged to raise additional 
issues or make suggestions unrelated to these questions. Respondents 
are also encouraged to share examples and a detailed explanation of how 
the suggestion will support the goals of the Regulations review 
process. We are seeking public comment for a period of 60 days ending 
January 17, 2012, after which it will revise the plan and make it 
available to the public.
    1. How should the Corps modify its Regulations to ensure that they 
are serving their stated purpose efficiently and effectively? Please 
provide specific recommendations on edits that could be made and 
suggestions on appropriate outreach and timing.
    2. How can we reduce burdens and maintain flexibility for 
participants in the regulatory process in a way that will promote the 
protection of waters of the United States via the improvement of the 
Regulations?
    3. How can the process set forth in the Regulations better achieve 
simplified and efficient outcomes?
    4. How can the Regulations be changed to better harmonize with, be 
consistent with, and coordinate effectively with, other federal 
regulations and environmental review procedures?
    5. How can we ensure that information developed to support findings 
under the Regulations are guided by objective scientific evidence?
    6. Are there better ways to encourage public participation and an 
open exchange of views as part of the regulatory review? Please cite 
specific areas where improvements could be made and indicate what tools 
or mechanisms might be made available to achieve this goal.
    7. The NWP program allows for comment and periodic review during 
the reauthorization process every five years. How else can the periodic 
review of the NWP program be utilized to comply with this E.O.?
    8. How else might we modify, clarify, or improve the Regulations to 
reduce burdens, promote predictability, and increase efficiency?

Authority

    We are proposing to improve the Regulations and comply with the 
direction to perform a periodic regulatory review with the existing 
reauthorization of the NWP program, which were issued under the 
authority of 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. 401 et 
seq.), and Section 103 of the Marine Protection Research and 
Sanctuaries Act of 1972 (33 U.S.C. 1413).

    Dated: November 10, 2011.

    Approved.
Michael G. Ensch,
Chief, Operations and Regulatory, Directorate of Civil Works.
[FR Doc. 2011-29633 Filed 11-15-11; 8:45 am]
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