[Federal Register: September 27, 2004 (Volume 69, Number 186)]
[Proposed Rules]
[Page 57662-57664]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se04-18]
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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
david.b.olson@hq02.usace.army.mil. 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