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###### Department of Defense

###### Department of the Army; Corps of Engineers

          - 33 CFR Part 325
          - RIN 0710-AA51

# AGENCY:

U.S. Army Corps of Engineers, DoD.

# ACTION:

Advance notice of proposed rulemaking.

# 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                           ( print 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                           ( print 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