[Federal Register Volume 89, Number 28 (Friday, February 9, 2024)]
[Proposed Rules]
[Pages 9079-9087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02580]


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

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Parts 325 and 330

[Docket ID: COE-2023-0004]
RIN 0710-AB46


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

AGENCY: Army Corps of Engineers, Department of Defense (DoD).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: To demonstrate the greatest possible consistency between the 
procedures used by the U.S. Army Corps of Engineers (Corps) Regulatory 
Program to comply with the National

[[Page 9080]]

Historic Preservation Act (NHPA) and its implementing regulations, 
``Protection of Historic Properties'' when processing permit 
applications, the Corps is proposing to amend its Regulatory Program's 
permitting regulations. The Corps will instead follow the NHPA's 
implementing regulations, developed and interpreted by the Advisory 
Council on Historic Preservation (ACHP), relying on the flexibility in 
those regulations for Federal agency compliance with the steps of 
review. The Corps will take into account, among other factors, the 
degree and scope of the Federal involvement in the undertaking and the 
relationship of Federal actions to the overall proposed activities. 
Further, the Corps is also proposing to make conforming changes to its 
nationwide permit program regulations to eliminate references in the 
regulations.

DATES: Comments must be submitted on or before April 9, 2024.

ADDRESSES: You may submit comments, identified by docket number COE-
2023-0004 and/or RIN 0710-AB46, 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-2023-0004, in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 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: If submitting comments through the Federal 
eRulemaking Portal, direct your comments to docket number COE-2023-
0004. 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 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 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 compact disc 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 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. Joseph McMahan, 
[email protected], or 202-236-7547.

SUPPLEMENTARY INFORMATION:

Background

    Under section 106 (54 U.S.C. 306108) of the NHPA (54 U.S.C. 300101 
et seq.), Federal agencies are required to consider the effects on 
historic properties from the undertakings they carry out, or non-
Federal projects that rely on Federal licenses, permits, approvals, 
funds, or assistance, and to provide the ACHP a reasonable opportunity 
to comment on those undertakings. This process is set forth within the 
section 106 implementing regulations (36 CFR part 800). As required by 
the statute, the ACHP developed and issued the implementing regulations 
for this section of the NHPA, and as part of its oversight of the 
section 106 process, provides general guidance as well as specific 
comments on section 106 reviews for individual undertakings to ensure 
consistency with the regulations. The Corps Regulatory Program issues 
permits for certain activities in waters and wetlands subject to its 
jurisdictional authorities. The procedures which the Corps' Regulatory 
Program currently uses for complying with section 106 of the NHPA, as 
set forth in appendix C of the Corps' permitting regulations, were 
issued as a final rule in 1990 but did not go through separate approval 
by the ACHP, as required by the NHPA and the section 106 implementing 
regulations. Since that final rule was issued, the NHPA has been 
amended several times and the ACHP has also amended the section 106 
implementing regulations. The NHPA requires that a Federal agency's 
procedures for compliance with section 106 be consistent with the 
section 106 implementing regulations issued by the ACHP, which specify 
a consultation process for ACHP review and approval of an agency's 
proposed alternative procedures (36 CFR 800.14).
    The Corps Regulatory Program administers three laws: section 404 of 
the Clean Water Act, sections 9 and 10 of the Rivers and Harbors Act of 
1899, and section 103 of the Marine Protection, Research, and 
Sanctuaries Act of 1972, as amended. Under section 404 of the Clean 
Water Act, a permit is required to discharge dredged or fill material 
into waters of the United States. Under Section 9 of the Rivers and 
Harbors Act of 1899, a permit is required to construct dams or dikes 
across navigable waters of the United States. The obstruction or 
alteration of a navigable water of the United States requires a permit 
under Section 10 of the Rivers and Harbors Act of 1899. Under Section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, as 
amended, a permit is required to transport dredged material for 
disposal into ocean waters.
    Section 106 of the NHPA (54 U.S.C. 306108) requires Federal 
agencies to consider the effects on historic properties from the 
undertakings they carry out or provide a Federal license, permit, 
approval, funding, or assistance to, and to provide the ACHP a 
reasonable opportunity to comment on the undertaking. Historic 
properties are properties that are included in, or eligible for 
inclusion in, the National Register of Historic Places. The 
consideration and issuance of a Department of the Army (DA) permit by 
the Corps Regulatory Program is a Federal action that makes a project, 
activity, or program, which includes activities that can potentially 
affect historic properties, subject to review by the Corps under 
section 106 of the NHPA and its implementing regulations, ``Protection 
of Historic Properties'' (36 CFR part 800).
    Section 211 of the NHPA authorizes the ACHP to promulgate the 
regulations to govern the implementation of section 106 in its 
entirety. The regulations thus developed by the ACHP at 36 CFR part 800 
define how Federal agencies meet their statutory responsibilities under 
section 106 the NHPA. Additionally, section 110(a)(2)(E) of the NHPA

[[Page 9081]]

requires Federal agency procedures for section 106 of the NHPA to be 
consistent with the section 106 regulations issued by the ACHP pursuant 
to section 211 of the Act. Under 36 CFR 800.14, an agency may develop 
alternate procedures or other program alternatives to implement section 
106 and substitute them for 36 CFR part 800 after following a specified 
consultative process and a consistency determination by ACHP (see 36 
CFR 800.14(a)). The ACHP oversees the operation of the section 106 
process (36 CFR 800.2(b)). The Army Civil Works programs, other than 
the Regulatory Program, use the implementing regulations at 36 CFR part 
800, for its compliance with section 106 of the NHPA.

Corps Regulatory Program and Appendix C

    There are two categories of permits that the Corps Regulatory 
Program issues under its permitting authorities: individual permits and 
general permits. Individual permits include standard individual permits 
and letters of permission. A standard individual permit is an activity-
specific permit that is processed through the public interest review 
procedures, including the issuance of a public notice and receipt of 
comments, the preparation of activity-specific National Environmental 
Policy Act documentation (e.g., an environmental assessment or 
environmental impact statement), and, if the proposed activity involves 
discharges of dredged or fill material into waters of the United 
States, an activity-specific Clean Water Act section 404(b)(1) 
Guidelines analysis to ensure that the discharge of dredged or fill 
material complies with the environmental criteria in those Guidelines. 
A letter of permission is an individual permit issued after an 
abbreviated public interest review procedure and usually involves 
coordination with Federal and State agencies prior to making a decision 
on the permit application. Each year, the Corps issues approximately 
3,000 individual permits.
    General permits include nationwide permits, regional general 
permits, and programmatic general permits. General permits authorize 
categories of activities across the country that have no more than 
minimal individual and cumulative adverse environmental effects. Some 
general permits require the project proponent to submit a notification 
to the appropriate Corps district before beginning the authorized 
activity. Other activities authorized by general permits do not require 
prior notification to the Corps district, and the project proponent can 
proceed with the activity as long as they comply with all terms and 
conditions of the general permit. Each year, the Corps issues 
approximately 35,000 written general permit verifications, and 
thousands of other minor activities are authorized by non-reporting 
general permits that do not require the project proponent to contact 
the applicable Corps district office before proceeding with the general 
permit activity. The Corps Nationwide Permits program provides a list 
of available nationwide general permits as well as anticipated number 
of times they would be used within a five-year timeframe.\1\
---------------------------------------------------------------------------

    \1\ https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/, last accessed January 17, 
2023.
---------------------------------------------------------------------------

    When a Corps district issues a public notice to solicit comments on 
a proposed activity that requires a standard individual permit, or for 
a proposal to issue a regional general permit, the public notice 
includes a statement of the district engineer's current knowledge on 
historic properties (see 33 CFR 325.3(a)(10)). A copy of the public 
notice is provided to the State Historic Preservation Officer (SHPO), 
appropriate State agencies, appropriate Indian Tribes or Tribal 
representatives, or Native Hawaiian Organizations, concerned Federal 
agencies, appropriate city and county officials, as well as all parties 
who have specifically requested copies of public notices (see 33 CFR 
325.3(d)(1)). The Corps Regulatory Program's general policies for 
evaluating permit applications are found at 33 CFR 320.4. The decision 
whether to issue a permit will be based on an evaluation of the 
probable impacts, including cumulative impacts, of the proposed 
activity and its intended use on the public interest.
    The Corps' procedures for the processing of permit applications are 
provided at 33 CFR part 325. Section 325.1 identifies the information 
required for permit applications. Section 325.2 describes the standard 
procedures for processing permit applications, as well as more specific 
procedures that are needed for various types of regulated activities, 
such as water quality certification under section 401 of the Clean 
Water Act, Coastal Zone Management Act consistency determinations, 
National Historic Preservation Act compliance, and Endangered Species 
Act compliance. Section 325.2(d) addresses the timing of the processing 
of permit applications. Section 325.8 discusses which Corps officials 
have the authority to issue permits under various circumstances. There 
are also three appendices to 33 CFR part 325, which are the following: 
appendix A of 33 CFR to part 325 discusses permit form and special 
conditions; appendix B to part 325 discusses NEPA implementation 
procedures for the regulatory program; and appendix C to part 325 
discusses procedures for the protection of historic properties.
    Appendix C to 33 CFR part 325 was intended to provide a set of 
definitions and procedures to the Corps and the regulated public for 
the Corps Regulatory Program's compliance with the requirements of 
section 106 of the NHPA, which requires Federal agencies to consider 
the effects of undertakings on historic properties and to provide the 
ACHP with a reasonable opportunity to comment on those undertakings. 
However, differences between appendix C and the 36 CFR part 800 
regulations have in many cases introduced confusion resulting in debate 
over the extent and appropriateness of the Corps review. The major 
differences relate to the scope of the effort to identify and address 
effects to historic properties from undertakings and the nature of 
consultation with appropriate stakeholders. The section 106 
implementing regulations includes a definition of ``undertaking'' and 
``area of potential effects'' which establish the basis for the scope 
of a Federal agency's responsibility to identify and address effects to 
historic properties. 36 CFR 800.16(y) defines the ``undertaking'' as a 
project, activity, or program funded in whole or in part under the 
direct or indirect jurisdiction of a Federal agency, including those 
carried out by or on behalf of a Federal agency; those carried out with 
Federal financial assistance; and those requiring a Federal permit, 
license or approval, while the ``area of potential effects'' includes 
the geographic area or areas within which an undertaking may directly 
or indirectly cause alterations in the character or use of historic 
properties, if any such historic properties exist. The area of 
potential effects is influenced by the scale and nature of an 
undertaking and may be different for different kinds of effects caused 
by the undertaking (36 CFR 800.16(d)). Paragraph 1(f) of appendix C 
defines the ``undertaking'' subject to the requirements of section 106 
to be the work, structure or discharge that requires a DA permit. 
Rather than using ``area of potential effects,'' appendix C uses 
``permit area'' which includes the areas consisting of jurisdictional 
waters, including

[[Page 9082]]

wetlands, under the Corps' statutory authorities to regulate that will 
be directly affected by the proposed activity requiring DA 
authorization plus any uplands that would be directly affected by the 
activities requiring DA authorization. The definition of ``permit 
area'' includes a three-part test to identify activities outside of 
jurisdictional waters, including wetlands, (e.g., activities in 
uplands) that would be included with the activities subject to the 
Corps' permitting authorities and the section 106 process. The 
definition of ``permit area'' in paragraph 1(g) of appendix C provides 
three examples to the Corps and the regulated public for applying the 
concept of ``permit area'' to a number of potential permitting 
scenarios.
    Under the Corps Regulatory Program's appendix C procedures, after 
the undertaking and permit area are determined, Corps Regulatory 
Program staff identify historic properties that could potentially be 
affected by the undertaking and the activities in the permit area. If 
the Corps district is processing a standard individual permit for the 
proposed activity requiring DA authorization, the public notice 
includes a statement regarding the district engineer's current 
knowledge of the presence or absence of historic properties and the 
effects of the proposed activity requiring DA authorization on historic 
properties. Appendix C includes certain coordination procedures and 
procedures for assessing effects on historic properties, and for 
providing the ACHP the opportunity to review and comment on 
undertakings that require DA authorization.

Historical Context

    Executive Order 11593, ``Protection and Enhancement of the Cultural 
Environment,'' which was issued on May 13, 1971 (36 FR 8921), directed 
Federal agencies, in consultation with the ACHP, to institute 
procedures to ensure that ``Federal plans and programs contributed to 
the preservation and enhancement of non-federally owned sites, 
structures and objects of historical, architectural or archeological 
significance.'' In addition, a Presidential Memorandum on Environmental 
Quality and Water Resource Management issued on July 12, 1978, directed 
the ACHP to issue regulations for implementing the NHPA by March 1, 
1979. That Presidential Memorandum also directed Federal agencies such 
as the Corps with consultative responsibilities under the NHPA to 
publish separate procedures for implementing the section 106 
implementing regulations within three months of ACHP's issuance of 
them. Furthermore, the Presidential Memorandum required Federal agency 
NHPA procedures to be reviewed by the ACHP, and if those procedures 
were consistent with the ACHP's regulations, to also be approved within 
60 days by the Chairman of the ACHP.
    In a final rule published in the Federal Register on January 30, 
1979 (44 FR 6068), the ACHP amended its NHPA section 106 regulations at 
36 CFR part 800. In response to the direction received in the 
Presidential Memorandum and the ACHP's amended regulations, the Corps 
drafted a proposed rule to implement NHPA section 106 for the 
processing of applications for DA permits. The rule would establish 
appendix C to 33 CFR part 325. The proposed rule for appendix C was 
published in the Federal Register on April 3, 1980 (45 FR 22112) for a 
60-day public comment period. In that proposed rule, the Corps 
Regulatory Program stated that it would be using the proposed appendix 
C on an interim basis for the processing of applications for DA 
permits. The Corps Regulatory Program did not issue a final rule in 
response to the April 3, 1980, proposed rule.
    Changes to the proposed appendix C were made in response to 
direction provided on May 7, 1982, by the Presidential Task Force on 
Regulatory Relief. The Task Force directed the Army to take steps to 
reduce or eliminate delays in the processing of DA permit applications, 
while fulfilling the Corps Regulatory Program's responsibilities under 
section 106 of the NHPA. The revised proposed rule was intended to give 
ACHP a reasonable opportunity to comment on permit applications for 
proposed activities that may affect historic properties, as well as 
provide SHPOs and the general public opportunities to provide comments 
on permit applications. The revised proposed rule for appendix C was 
published in the Federal Register on May 4, 1984 (49 FR 19036) for a 
60-day public comment period. The Corps Regulatory Program published 
its final rule for appendix C to 33 CFR part 325 (June 29, 1990, 55 FR 
27000) following the Administrative Procedure Act process. Separate 
ACHP review and approval was not obtained.
    The NHPA was amended in 1992, and some of those amendments have 
direct relevance to the Corps Regulatory Program's processing of 
applications for DA permits. One amendment stated that properties of 
traditional and cultural importance to an Indian Tribe or Native 
Hawaiian Organization may be determined to be eligible for inclusion in 
the National Register of Historic Places. Another amendment requires 
Federal agencies, as part of their section 106 responsibilities, to 
consult with any Indian Tribe or Native Hawaiian Organization that 
attaches religious and cultural significance to historic properties. 
The 1992 amendments to the NHPA also included a provision that 
prohibits Federal agencies from granting a license or assistance to 
applicants who intend to avoid section 106 requirements by 
significantly adversely affecting historic properties to which the 
license or assistance would relate (section 110(k)).
    Because the NHPA provides the ACHP the authority to issue 
regulations for section 106 in its entirety, and because the NHPA 
requires Federal agency section 106 procedures to be consistent with 
the section 106 regulations issued by the ACHP, the Corps Regulatory 
Program did not immediately propose any changes to Appendix C to 
address the 1992 amendments to the NHPA. The Corps Regulatory Program 
instead waited for the ACHP to make changes to section 106 implementing 
regulations to address those amendments to the NHPA. In the May 18, 
1999, issue of the Federal Register (64 FR 27044), the ACHP published a 
final rule that amended 36 CFR part 800 to address the 1992 amendments 
to the NHPA. The ACHP subsequently published a revised final rule in 
the December 12, 2000 issue of the Federal Register (65 FR 77698). That 
final rule went into effect on January 11, 2001.
    In the March 8, 2002, issue of the Federal Register (67 FR 10822), 
the Corps Regulatory Program published a notice to solicit comments on 
how its section 106 procedures should be revised to address the 1992 
amendments to the NHPA and the ACHP's changes to the section 106 
implementing regulations at 36 CFR part 800. In this notice, the Corps 
Regulatory Program also announced that it would be developing interim 
guidance to address the application of appendix C in consideration of 
the revised 36 CFR part 800 regulations until the rulemaking process 
was completed. The notice indicated that after the comment period 
ended, and the comments were fully considered, the Corps Regulatory 
Program may develop additional guidance, propose modifications to 
appendix C, develop programmatic agreements, or create other products 
to update its section 106 procedures.
    On June 24, 2002, the Corps issued the interim guidance mentioned 
in the

[[Page 9083]]

previous paragraph. The 2002 interim guidance was intended to be a 
temporary measure until appendix C could be revised through 
Administrative Procedure Act rulemaking process, or through other 
approaches. The 2002 interim guidance discussed the identification of 
consulting parties for the section 106 process, consultation with 
Indian Tribes and Native Hawaiian Organizations, the use of memorandums 
of agreement to resolve adverse effects to historic properties, and the 
resolution of NHPA section 110(k) violations.
    In 2004, the ACHP issued a final rule that made additional changes 
to 36 CFR part 800. That final rule was published in the July 6, 2004, 
issue of the Federal Register (69 FR 40544) and it went into effect on 
August 5, 2004. One change to the section 106 regulation confirmed that 
the ACHP could not require a Federal agency to change its 
determinations regarding whether its undertaking affected or adversely 
affected historic properties. Another modification of the ACHP's 
section 106 regulations reflected a court finding that section 106 does 
not apply to undertakings that are merely subject to State or local 
regulation administered pursuant to a delegation or approval by a 
Federal agency. The ACHP's 2004 final rule also clarified the time 
period for objections to a Federal agency's ``no adverse effect'' 
findings.
    In the September 27, 2004, issue of the Federal Register (69 FR 
57662), the Corps published an advance notice of proposed rulemaking 
(ANPRM) to obtain public comment on issues related to Corps Regulatory 
Program's fulfillment of the requirements of NHPA section 106. The 
Corps solicited comments on how its permit application processing 
procedures should be revised in response to the 1992 amendments to the 
NHPA and the ACHP's 2000 and 2004 revisions to the section 106 
implementing regulations at 36 CFR part 800. The Corps also asked for 
suggestions for facilitating government-to-government consultation with 
American Indian and Alaska Native governments, as well as consultation 
with SHPOs, Tribal Historic Preservation Officers (THPOs), Native 
Hawaiian Organizations, interested organizations, the regulated public, 
and other interested parties during a potential future rulemaking 
process.
    In the 2004 ANPRM, the Corps Regulatory Program also invited 
comments on specific options for updating the Corps' permit application 
processing procedures to address the 1992 amendments to the NHPA and 
the revised 36 CFR part 800. Those options included: (1) revising 
appendix C to incorporate the current requirements and procedures at 36 
CFR part 800; (2) revoking appendix C and using 36 CFR part 800 when 
reviewing individual permit applications, and utilizing Federal agency 
program alternatives at 36 CFR 800.14 for general permits; (3) revoking 
appendix C and using 36 CFR part 800 for all individual permits and 
general permits; and (4) revoking appendix C and developing non-
regulation alternative procedures in accordance with 36 CFR 800.14. The 
Corps also invited suggestions for other options that were not 
identified in the ANPRM.
    On April 24, 2005, the Corps issued revised interim guidance \2\ to 
address the changes to the section 106 implementing regulations that 
were finalized in 2000 and 2004. The 2005 revised interim guidance 
replaced the Corps Regulatory Program's interim guidance that was 
issued on June 24, 2002.
---------------------------------------------------------------------------

    \2\ https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2478 (accessed April 3, 2022).
---------------------------------------------------------------------------

    The Corps Regulatory Program issued additional interim guidance on 
January 31, 2007,\3\ to supplement the interim guidance issued on April 
25, 2005. The January 31, 2007, guidance clarified that when evaluating 
proposed activities that may be eligible for authorization by general 
permits, the Corps district is responsible for providing the SHPO/THPO 
with the opportunity to comment on ``no effect'' and ``no adverse 
effect'' determinations. The January 31, 2007, guidance also provided 
that Corps districts must complete the section 106 process before 
making a decision on whether to issue an individual permit or general 
permit verification.
---------------------------------------------------------------------------

    \3\ https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/4042 (accessed April 3, 2022).
---------------------------------------------------------------------------

    In the June 3, 2022, issue of the Federal Register (87 FR 33756), 
the Assistant Secretary of the Army (Civil Works) published a notice to 
announce an effort to modernize the Civil Works program of the Corps 
through a number of related policy initiatives. In this notice, the 
Army stated that rulemaking on the Corps' Regulatory Program's 
procedures for complying with section 106 of the NHPA at 33 CFR part 
325 appendix C is a priority policy initiative that would help 
modernize the Corps Regulatory Program with respect to section 106 of 
the NHPA. The Army acknowledged there has been longstanding 
disagreement between the Corps and ACHP regarding differences between 
the Corps' Regulatory Program appendix C and the regulations 
promulgated by ACHP governing the section 106 process. These 
differences have resulted in lengthy and challenging consultations 
involving, for example, disputes about the scope of the undertaking 
subject to review, the Corps' ``permit area,'' and the area of 
potential effects as defined in the section 106 implementing 
regulations. Further, under the regulations promulgated by ACHP, if an 
adverse effect cannot be avoided by modifying the undertaking, the 
resolution of adverse effects can be accomplished via the development 
of a Memorandum of Agreement or, for certain complex projects or 
programs, a Programmatic Agreement, while the Corps' regulations allow 
for resolution through a Memorandum of Agreement or permit 
conditioning, which is the equivalent of modifying the undertaking to 
avoid adverse effects. There are also timeline differences between the 
section 106 regulations and Appendix C, and the latter does not include 
Tribal or Native Hawaiian Organization consultation requirements. The 
June 3, 2022, notice also stated that the Corps Regulatory Program's 
reliance on appendix C and multiple guidance documents can result in 
inconsistency and confusion among the Federal agencies, the regulated 
public, SHPOs and THPOs, Tribes, Native Hawaiian Organizations, and 
others. In addition, Tribal Nations have also stated that the lack of 
updated and consistent implementing regulations reflecting the current 
NHPA language for the Corps' Regulatory Program indicates that the 
Corps is not meeting their statutory and Tribal trust responsibilities.
    The Army asked for input in the June 2022 Federal Register notice 
on the best approach to modernizing the Corps Regulatory Program's 
procedures for the protection of historic properties. More 
specifically, the Army sought input on whether the Corps Regulatory 
Program should rely on the section 106 implementing regulations at 36 
CFR part 800 promulgated by ACHP and remove appendix C from 33 CFR part 
325, and whether any clarifying guidance is needed on the scope of the 
area of potential effects for the Corps Regulatory Program. The Army 
also asked whether development of a Program Alternative under 36 CFR 
800.14 would provide clear and consistent NHPA section 106 
implementation procedures for the Corps Regulatory Program, as well as 
improved Tribal and Native Hawaiian Organization consultation. Four 
virtual engagements were held with approximately 300 attendees in 
total, and the written docket received 127

[[Page 9084]]

written letters on the appendix C topic, including from 29 Tribal 
Nations. A summary of the comments received from this effort can be 
found on the Army Civil Works web page.\4\ Over 95% of commenters 
recommended the removal of appendix C from 33 CFR part 325 and the 
requirement that the Corps follow the section 106 implementing 
regulations (36 CFR part 800) in order to comply with section 106 of 
the NHPA. The primary comments received stated: appendix C is not 
compliant with section 106 of the NHPA and is not consistent with 36 
CFR part 800; appendix C is not legally valid due to lack of ACHP 
approval; there is a lack of consistency across Corps districts in 
implementing section 106 of the NHPA and between the Regulatory Program 
and the rest of Corps Civil Works which complies with section 106 of 
the NHPA through 36 CFR part 800; the definition of undertaking used in 
appendix C results in an inappropriately narrow scope of review with 
inappropriate assessment of direct and indirect effects; and that 
appendix C does not adequately address consultation requirements.
---------------------------------------------------------------------------

    \4\ https://api.army.mil/e2/c/downloads/2022/12/08/7e19d5a2/modernize-civil-works-frn-comments-on-appendix-c.pdf (accessed April 
19, 2023).
---------------------------------------------------------------------------

Description of Proposed Action for the Corps Regulatory Program's 
Adherence to the Section 106 Implementing Regulations at 36 CFR 800

    This proposed rule takes the next step in the Assistant Secretary 
of the Army (Civil Works)'s efforts to modernize the Corps Regulatory 
Program's procedures for the protection of historic properties pursuant 
to section 106 of the NHPA. In this proposed rule, the Corps is 
soliciting public input on removing appendix C from 33 CFR part 325. 
With appendix C removed from part 325, the Corps would utilize and 
follow the section 106 implementing regulations at 36 CFR part 800, 
including its requirements regarding consulting with Tribes and Native 
Hawaiian Organizations during the section 106 review process. As a 
supplement, the Corps would also work with the ACHP to draft and 
disseminate guidance for the Corps' Regulatory Program to include 
illustrative examples regarding how to apply the 36 CFR part 800 
regulations to potential permitting scenarios. This would ensure 
clarity and consistency for the Corps as well as transparency for the 
regulated public as to how the Corps Regulatory Program would comply 
with section 106 of the NHPA through its implementing regulations at 36 
CFR 800. In a separate but parallel effort, the Corps would work with 
the ACHP, Tribal Nations, Native Hawaiian Organizations, SHPOs, THPOs, 
and other consulting parties to develop an appropriate program 
alternative under 36 CFR 800.14 to establish a more efficient and 
effective process for Corps compliance with section 106 for 
undertakings that rely on authorizations available through the 
Nationwide Permits program with a target of completion to align with 
the next issuance cycle for the Nationwide Permits (March 2026).
    Under this proposed rule, the Corps Regulatory Program would amend 
its regulations for the processing of DA permit applications at 33 CFR 
part 325 by removing appendix C (``Procedures for the Protection of 
Historic Properties'') from those regulations. If Appendix C is removed 
from 33 CFR part 325, the Corps Regulatory Program will instead follow 
the section 106 implementing regulations at 36 CFR part 800 in order to 
take into account effects on historic properties from undertakings 
requiring DA authorization, including the processing of individual 
permit applications and general permit verification requests. To 
provide clarity regarding the applicable procedures for compliance with 
section 106 of the NHPA during the processing of applications for DA 
authorization, the Corps is also proposing to revise paragraph (b)(3) 
to 33 CFR 325.2, which references proposed activities involving 
historic properties. The Corps is proposing to modify this paragraph by 
removing the reference to the ``Corps National Historic Preservation 
Act implementing regulations.'' The Corps notes that the information 
provided in a public notice is preliminary information and comments 
gathered through the public notice process along with other information 
would be used to inform the section 106 review conducted by the Corps. 
The information in the public notice is only intended for disclosure 
and transparency purposes and is not intended to demonstrate or 
substitute for compliance with section 106. The Corps is proposing to 
revise section 325.2(b)(3) to state that when reviewing applications 
for DA permits, the Corps Regulatory Program will follow the section 
106 implementing regulations at 36 CFR part 800 to comply with the 
requirements of section 106 of the NHPA. The Corps is also proposing to 
make conforming changes to its nationwide permit program regulations at 
33 CFR 330.4(g) to remove references to appendix C and cite the 
regulations at 36 CFR part 800 instead.

Proposed Conforming Changes to the Corps' Nationwide Permit Regulations

    The Corps Regulatory Program's regulations for implementing its 
nationwide general permit program are provided in part 330 of Title 33 
of the Code of Federal Regulations. Section 330.4(g) addresses the 
Nationwide Permit Program's compliance with section 106 of the NHPA. 
Section 330.4(g) contains references to appendix C to 33 CFR part 325, 
and the Corps is proposing to amend paragraph (g) by removing the 
references to appendix C and replacing them with references to the 
applicable provisions of 36 CFR part 800. The Corps is also proposing 
to remove the remaining subparagraphs of paragraph (g) in the 
regulation because they are superseded by the current Nationwide 
Permits regulation and permits with general conditions issued on 
January 13, 2021 (86 FR 2744). The Corps would continue to utilize the 
January 2021 regulation regarding General Condition 18 for historic 
properties while the Corps and ACHP focus on developing a program 
alternative regarding the Nationwide Permits compliance with section 
106 of the NHPA to align with issuance of the next cycle of Nationwide 
Permits in 2026. To be clear, once notification occurs under General 
Condition 18 of the Nationwide Permits, the Corps would then proceed in 
using 36 CFR part 800 under this proposed rule as Appendix C would be 
removed from the CFR.

Expected Impact of This Rule

    This proposed rule would primarily impact the Corps, applicants for 
Corps authorizations, Tribal Nations, Native Hawaiian Organizations, 
Tribal and State Historic Preservation Officers, and the general 
public, including groups interested in historic and cultural resource 
preservation. The Corps will be impacted through an implementation 
change from appendix C to 36 CFR part 800 for implementing section 106 
of the NHPA. This will require additional training as the Corps follows 
a new process for compliance. The remaining impacted groups, including 
Tribal Nations, will have the benefit of improved clarity and 
consistency for implementation of section 106 of the NHPA as applied to 
the Corps' Regulatory Program. This will include consistency within the 
Corps and consistency with the rest of the Federal government, 
including the Corps' own Civil Works programs. Note that this proposed 
change to the regulations cannot modify the Corps' existing statutory 
authorities.

[[Page 9085]]

    Army considered both a no action alternative as well as an 
alternative that would revise appendix C. The no action alternative 
would result in continued use of appendix C, which has not been updated 
to align with changes in section 106 of the NHPA and its implementing 
regulations at 36 CFR part 800, and therefore is not a viable 
alternative. The alternative to revise appendix C would essentially 
result in the same language found in 36 CFR part 800, rendering the 
revision inefficient and duplicative.

Invitation for Public Comment

    The Corps of Engineers is inviting public comment on all aspects of 
the proposal to remove appendix C from its regulations for the 
processing of applications for DA authorization at 33 CFR part 325 and 
its possible effects. If appendix C is removed, the Corps Regulatory 
Program would comply with section 106 of the NHPA by following and 
using the section 106 implementing regulations at 36 CFR part 800 for 
the processing of those permit applications (supplemented by a guidance 
document to be developed and disseminated jointly by the Corps and ACHP 
using existing regulations and ACHP guidance and providing illustrative 
examples). When a Corps district determines that a type of undertaking 
requiring DA authorization has the potential to cause effects to 
historic properties, it would use the section 106 implementing 
regulations at 36 CFR part 800 during the processing of the permit 
application. The Corps is also soliciting public comment on the 
proposal to modify paragraph (b)(3) of CFR 325.2 to identify the 
section 106 implementing regulations at 36 CFR part 800 as the 
regulations the Corps Regulatory Program would follow to comply with 
section 106 of the NHPA. Interested parties are also invited to provide 
comments on the Corps' proposed conforming changes to its Nationwide 
Permit regulations at 33 CFR 330.4(g), which addresses the requirements 
of section 106 of the NHPA for the Nationwide Permit program.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998 (63 FR 31885, June 10, 1998), regarding plain language, 
this preamble is written using plain language.

Paperwork Reduction Act

    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
For the Corps Regulatory Program under section 10 of the Rivers and 
Harbors Act of 1899, section 404 of the Clean Water Act, and section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements is 
maintained by the Corps of Engineers (OMB approval number 0710-0003, 
Application for a Department of Army Permit).
    This proposed rule would not impose any additional information 
collection requirements or require the Corps Regulatory Program to 
propose changes to its current information collection requirements for 
activities that require DA authorization.

Executive Orders 12866, 13563, and 14094

    This action is a significant regulatory action under Executive 
Order 12866 (58 FR 51735, October 4, 1993), Executive Order 13563 (76 
FR 3821, January 21, 2011), and Executive Order 14094 (88 FR 21879, 
April 11, 2023) that was submitted to the OMB for review. It also 
followed the principles of section 2 of Executive Order 14094 through 
early engagement during the Modernize Civil Works effort (Notice of 
Virtual Public and Tribal Meetings Regarding the Modernization of Army 
Civil Works Policy Priorities; Establishment of a Public Docket; 
Request for Input; 87 FR 33756, June 3, 2022). A summary of comments 
received can be found on the Army Civil Works web page.\5\
---------------------------------------------------------------------------

    \5\ https://api.army.mil/e2/c/downloads/2022/12/08/7e19d5a2/modernize-civil-works-frn-comments-on-appendix-c.pdf, last accessed 
on April 19, 2023.
---------------------------------------------------------------------------

Executive Order 13132

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999), requires the Corps to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
The proposal to remove Appendix C from the Corps' regulations at 33 CFR 
part 325 and use the regulations at 36 CFR part 800 during the Corps 
Regulatory Program's processing of individual permit applications and 
general permit verification requests does not have federalism 
implications. We do not believe that the proposed change in the Corps 
Regulatory Program's procedures for compliance with section 106 of the 
NHPA will have substantial direct effects on the states, on the 
relationship between the Federal government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government. The proposal will not impose any additional substantive 
obligations on State or local governments. Therefore, Executive Order 
13132 does not apply to this proposal.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act 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 
proposed 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 removal of 
appendix C from 33 CFR part 325, the use of the regulations at 36 CFR 
part 800 to comply with section 106 of the NHPA during the processing 
of applications for DA authorizations, and the proposed conforming 
changes to the Corps' nationwide permit program regulations at 33 CFR 
330.4(g) on small entities, a small entity is defined as: (1) A small 
business based on Small Business Administration 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; or (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of the proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. The Corps Regulatory 
Program's proposed procedures for compliance with section 106 of the 
NHPA would follow the section 106 implementing regulations at 36 CFR 
part 800. Small entities that need to obtain required DA authorizations 
through individual permits or general permits would have to support 
compliance with section 106 of the NHPA through the existing section 
106 procedures at 36 CFR part 800. All other Federal agencies, unless 
they have an approved program alternative, use the 36 CFR 800 
regulations and as such the small entities who apply for permits or 
work with the Federal government would be

[[Page 9086]]

familiar with the procedures outlined in 36 CFR part 800. This 
familiarity would eliminate confusion and reduce any burdens on the 
part of the small entities under implementation of any finalized rule. 
In addition, the rest of the Corps Civil Works programs use the 36 CFR 
part 800 regulations so any small entity working with the Corps Civil 
Works programs would also already be familiar with implementation. 
Following appendix C under its current form can actually cause delays 
and expenditure of additional resources for small entities when 
multiple authorizations and Federal agencies are involved in addition 
to any required Corps Regulatory Program review as the small entity 
must comply with and understand two sets of implementing regulations. 
In addition, as appendix C has not been updated to align with changes 
in the NHPA, this proposed rule is a matter of bringing the Corps 
Regulatory Program into alignment with the NHPA.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed, under section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    The Corps has determined that the proposed removal of appendix C 
from its permit processing regulations at 33 CFR part 325 and the 
proposed conforming changes to 33 CFR 330.4(g) do not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. The proposed rule does not impose new 
substantive requirements and therefore does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. Therefore, this proposed rule is not subject to 
the requirements of sections 202 and 205 of the UMRA. For the same 
reasons, we have determined that the proposed removal of appendix C 
from 33 CFR part 325 and the proposed conforming changes to 33 CFR 
330.4(g) do not contain regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, this 
proposed rule is not subject to the requirements of section 203 of 
UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The proposal to remove appendix C from 33 CFR part 325 and to make 
conforming changes to 33 CFR part 330 is not subject to this Executive 
Order because the proposed rule is not economically significant as 
defined in Executive Orders 12866 and 14094. In addition, the proposed 
removal of appendix C from 33 CFR part 325 does not concern an 
environmental health or safety risk that the Corps has reason to 
believe may have a disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, ``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 rulemaking action will have Tribal implications. This 
rulemaking action 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 current regulations at 36 CFR part 800 require consultation 
with Indian Tribes when undertakings have the potential to cause 
effects to historic properties on Tribal lands or to historic 
properties of religious and cultural significance to Indian Tribes 
located off Tribal lands. Therefore, revising the Corps Regulatory 
Program's procedures for the protection of historic properties by 
removing appendix C to 33 CFR part 325 and using the section 106 
implementing regulations at 36 CFR part 800 for the processing of 
applications for DA permits, will have Tribal implications. In 
addition, a nationwide rulemaking action on procedures for compliance 
with section 106 of the NHPA inherently has Tribal implications.
    Tribal Nations are encouraged to submit comments on the proposal to 
remove appendix C from 33 CFR part 325 (``Procedures for the Protection 
of Historic Properties''), the proposal to modify Sec.  325.2(b)(3), 
and the proposed conforming changes to section 330.4(g) of the Corps' 
Nationwide Permit Program regulations. A letter has also been 
disseminated to all federally recognized Tribes, Alaska Native 
Corporations, and Native Hawaiian Organizations notifying them of this 
proposed rule action and offering Nation-to-Nation consultation. In 
addition, a virtual meeting on this proposed rule action has also been 
scheduled to solicit input from Tribal Nations, Alaska Native 
Corporations,

[[Page 9087]]

and Native Hawaiian Organizations to provide multiple opportunities for 
meaningful engagement on this action. Comments are also encouraged from 
Indigenous peoples and communities who may not be federally recognized.

Environmental Documentation

    The Corps has prepared a draft Environmental Assessment (EA) for 
this proposed rule. The draft EA is available for public comment in the 
www.regulations.gov docket for this proposed rule (docket number COE-
2023-0004).

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing the final rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The proposed removal of appendix C from the Corps 
Regulatory Program's permit processing regulations at 33 CFR part 325 
is not a ``major rule'' 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 United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

Executive Orders 12898 and 14096

    Executive Order 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All, makes clear that the pursuit of 
environmental justice is a duty of all executive branch agencies and 
should be incorporated into their missions. Executive Order 14096 
includes a whole-of-government definition of environmental justice.\6\ 
Under Executive Order 14096, agencies must, as appropriate and 
consistent with applicable law, identify, analyze, and address the 
disproportionate and adverse human health and environmental effects 
(including risks) and hazards of rulemaking actions and other Federal 
activities on communities with environmental justice concerns. 
Executive Order 14096 supplements the foundational efforts of Executive 
Order 12898 to address environmental justice.
---------------------------------------------------------------------------

    \6\ See E.O. 14096, Section 2, 88 FR 25,251 (Apr. 26, 2023); see 
also E.O. 12898, 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------

    The proposed removal of appendix C and the use of 36 CFR part 800 
to comply with the requirements of section 106 of the NHPA and the 
proposed additional conforming amendments to the Corps Regulatory 
Program's regulations is not expected to negatively impact any 
communities (including to cause any disproportionate adverse impacts).

Executive Order 13211

    The proposed removal of appendix C and the use of 36 CFR part 800 
to comply with the requirements of section 106 of the NHPA is not a 
``significant energy action'' as defined in Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

Authority

    The Corps is issuing this proposed rule under the authority of 
section 404 of the Clean Water Act (33 U.S.C. 1344), sections 9 and 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, as amended (33 U.S.C. 1413).

List of Subjects

33 CFR Part 325

    Administrative practice and procedure, Dams, Environmental 
protection, Intergovernmental relations, Navigation (water), Water 
pollution control, Waterways.

33 CFR Part 330

    Administrative practice and procedure, Intergovernmental relations, 
Navigation (water), Water pollution control, Waterways.

    For the reasons stated in the preamble, the Corps proposes to amend 
33 CFR chapter II as set forth below:

PART 325--PROCESSING OF DEPARTMENT OF THE ARMY PERMITS

0
1. The authority citation for part 325 continues to read as follows:

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 
1413.

0
2. Amend Sec.  325.2 by revising paragraph (b)(3) to read as follows:


Sec.  325.2  Processing of applications.

* * * * *
    (b) * * *
    (3) Historic properties. Applications will be reviewed for the 
potential impact of the relevant undertaking on historic properties 
pursuant to section 106 of the National Historic Preservation Act. The 
district engineer will include a statement in the public notice of 
their current knowledge of historic properties based on their initial 
review of the application (see paragraph (a)(2) of this section). If 
the district engineer determines that the proposed undertaking is of a 
type that would not have the potential to cause effects to historic 
properties, using the assumption that such properties are present, they 
will include a statement to this effect in the public notice. If the 
district engineer finds the proposed undertaking is of a type that has 
the potential to cause effects to historic properties they will 
continue proceeding in accordance with 36 CFR part 800.
* * * * *

Appendix C to Part 325-[Removed]

0
3. Remove Appendix C to part 325.

PART 330--NATIONWIDE PERMIT PROGRAM

0
4. The authority citation for part 330 continues to read as follows:

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 
1413.

0
5. Amend Sec.  330.4 by revising paragraph (g) to read as follows:


Sec.  330.4  Conditions, limitations, and restrictions.

* * * * *
    (g) Historic properties. No activity which has the potential to 
cause effects to properties listed or properties eligible for listing 
in the National Register of Historic Places, is authorized until the 
district engineer has complied with the applicable provisions of 36 CFR 
part 800.

    Approved by:
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
[FR Doc. 2024-02580 Filed 2-8-24; 8:45 am]
BILLING CODE 3720-58-P