[Federal Register Volume 88, Number 53 (Monday, March 20, 2023)]
[Notices]
[Pages 16594-16596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05551]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

[Docket ID COE-2023-0003]
ZRIN 0710-ZA18


Water Resources Development Act 2020, Section 165 Pilot Program 
for Continuing Authority Projects in Small or Disadvantaged Communities 
Draft Environmental Assessment, Notice of Availability for Comment

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

ACTION: Notice of availability for public comment.

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SUMMARY: The Department of the Army is publishing this notice to 
solicit comment on an environmental assessment of implementation of 
Section 165 of the Water Resources Development Act of 2020 which 
directs the Secretary of the Army to establish and implement a pilot 
program carrying out continuing authority projects in small or 
disadvantaged communities.

DATES: Comments must be received by April 19, 2023.

ADDRESSES: You may submit comments, identified by docket number COE-
2023-0003, using any of these methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected] 
and include the docket number, COE-2023-0003, in the subject line of 
the message.
    3. Mail: HQ, U.S. Army Office of the Assistant secretary of the 
Army, ATTN: Mr. Gib Owen, at U.S. Army, 108 Army Pentagon, Washington, 
DC 20310-0108.
    4. Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2023-0003. 
The public docket will include all comments exactly as submitted and 
without change and may be made available on-line at http://www.regulations.gov. This will include any personal information 
provided, unless the commenter indicates that the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information where 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 website 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 U.S. Army without going through 
regulations.gov, your email address will be automatically captured and 
included as part of the comment 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. No alternative media thumb drive or CD-ROM 
can be submitted. 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. Gib Owen at [email protected] or 571-274-1929.

SUPPLEMENTARY INFORMATION: The Department of the Army is publishing 
this notice to solicit comment on an environmental assessment prepared 
to support the implementation of Section 165 of the Water Resources 
Development Act (WRDA) of 2020 (Pub. L. 116-260). Section 165(a) of the

[[Page 16595]]

WRDA of 2020, as amended, directs the Secretary to implement a pilot 
program for carrying out continuing authority projects in small or 
disadvantaged communities at 100% Federal costs. It requires the 
Secretary to issue a Federal Register notice to solicit proposals from 
non-federal interests for a project under a continuing authority 
program (CAP) for an economically disadvantaged community. A 
description of each CAP is provided in Engineer Pamphlet (EP) 1105-2-
58, Continuing Authorities Program. A separate Federal Register notice 
soliciting qualified non-Federal interests to submit project proposals 
will be published at a later date. The notice would be published upon 
implementation of the Section 165 Pilot Program. A copy of the draft 
environmental assessment can be found at: https://www.usace.army.mil/Missions/Civil-Works/Water-Resources-Development-Act/.
    The contents of the documents do not have the force and effect of 
law and are not meant to bind the public in any way. This document is 
intended only to provide clarity to the public regarding existing 
requirements under the law or departmental policies.

Procedural Requirements

    a. Review under the National Environmental Policy Act. As required 
by the National Environmental Policy Act (NEPA), the Department of Army 
prepares appropriate environmental analysis for its activities 
affecting the quality of the human environment. We have preliminarily 
determined that this proposed Section 165 Pilot Program if finalized, 
would not constitute a major Federal Action significantly affecting the 
quality of the human environment because actions will be taken, during 
the planning to avoid, minimize, or compensatory mitigate for any 
adverse impacts that could occur as a result of the implementation of 
the recommended plan. The preliminary determination that an 
Environmental Impact Statement (EIS) will not be required for the 
issuance of this significant guidance will be reviewed in consideration 
of the comments received.
    b. Unfunded Mandates Reform Act. The Unfunded Mandates Reform Act 
does not apply to the Section 165 Pilot Program because the guidance 
associated with this action provides policy for the Commanding General 
of the U.S. Army Corps of Engineers to conduct Continuing Authority 
Program projects at 100% Federal expense. The Assistant Secretary of 
the Army for Civil Works has found that small governments will not be 
significantly and uniquely affected by this guidance.
    c. National Technology Transfer and Advancement Act. This Section 
165 Pilot Program does not involve technical standards and as such 
there are no anticipated requirements under this Act.
    d. Executive Order 12866. Executive Order 12866 (58 FR 51735, 
October 4, 1993), 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, Tribal, or local 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. In addition, per 32 CFR 339.7 (85 FR 32299), the 
same tests for significance also apply to guidance documents. This 
proposed Section 165 Pilot program has been found not to be a 
significant guidance action.
    e. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The 
proposed Section 165 Pilot Program does not impose any information 
collection requirements for which Office of Management and Budget (OMB) 
approval under the Paperwork Reduction Act is required.
    f. Executive Order 13132: Federalism. This proposed Section 165 
Pilot Program will not have substantial direct effects on the states, 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.
    g. Regulatory Flexibility Act. The Regulatory Flexibility Act 
(RFA), as amended (5 U.S.C. 601 et seq.) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of the proposed rule on small entities, a 
small entity is defined as: (1) A small business based on SBA size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. Although this is not a rulemaking 
action, the Assistant Secretary of the Army for Civil Works nonetheless 
certifies that this proposed Section 165 Pilot Program does not have a 
significant economic impact on a substantial number of small entities. 
The proposed Section 165 Pilot Program does not place any regulatory 
burdens on small entities or have a significant economic impact on such 
entities.
    h. Congressional Review Act (5 U.S.C. 801 et seq.). Pursuant to the 
Congressional Review Act, this proposed Section 165 Pilot Program has 
not been designated a major rule, as defined by 5 U.S.C. 804(2), as it 
is not a rulemaking action. However, analyzing the same parameters for 
this proposed significant guidance, the Assistant Secretary of the Army 
for Civil Works has determined that this proposed Section 165 Pilot 
Program is not considered ``major'' as defined by 5 U.S.C. 804(2), 
because it is not likely to result in: (1) An annual effect on the 
economy of $100,000,000 or more; (2) a major increase in costs or 
prices for consumers, individual industries, federal, state, or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.
    i. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments. Under Executive Order 13175, the Federal government 
may not issue a regulation that has substantial, direct effects on one 
or more Tribal Nation, on the relationship between the Federal 
government and Tribal Nation, or on the distribution of powers and 
responsibilities between the Federal government and Tribal Nations, and 
imposes substantial direct compliance costs on those communities, and 
that is not required by statute, unless the Federal government provides 
the funds necessary to pay the direct compliance cost incurred by the 
Tribal Nation governments, or we consult with those governments. If 
complying by consulting, Executive Order 13175 requires us to provide 
the Office of Management and Budget, in a separately

[[Page 16596]]

identified section of the preamble to the rule, a description of the 
extent of prior consultation with representatives of affected Tribal 
Nation governments, a summary of the nature of Tribal Nation concerns, 
and a statement supporting the need to issue the regulation. In 
addition, Executive Order 13175 requires that agencies develop an 
effective process permitting elected officials and other 
representatives of Tribal Nation governments an opportunity to provide 
timely input in the development of regulatory policies on matters that 
significantly or uniquely affect their communities. This proposed 
Section 165 Pilot Program does not impose significant compliance costs 
on any Tribal Nation or otherwise have substantial direct effects on 
the same. The proposed Section 165 Pilot Program would not have any 
adverse physical impacts to human environment as the expected result of 
the Assistant Secretary of the Army for Civil Works actions will be the 
development and construction of CAP projects. In the event that any 
Tribal Nations may have concerns with the proposed Section 165 Pilot 
Program, the Assistant Secretary of the Army for Civil Works encourages 
them to submit comments through the public comment process and/or to 
request government-to-government consultation.

Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
[FR Doc. 2023-05551 Filed 3-17-23; 8:45 am]
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