Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69563

eliminate ambiguity, and reduce 

burden. 

Protection of Children 

We have analyzed this proposed rule 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. This rule is not an economically 

significant rule and would not create an 

environmental risk to health or risk to 

safety that might disproportionately 

affect children. 

Indian Tribal Governments 

This proposed rule does not have 

tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it does not have 

a substantial direct effect 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. 

Energy Effects 

We have analyzed this proposed rule 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that Order, 

because it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 and is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. The 

Administrator of the Office of 

Information and Regulatory Affairs has 

not designated it as a significant energy 

action. Therefore, it does not require a 

statement of Energy Effects under 

Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.1D, which guides the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

proposed rule is categorically excluded, 

under figure 2–1, paragraph (32)(e) of 

the Instruction, from further 

environmental documentation. Under 

figure 2–1, paragraph (32)(e), of the 

Instruction, an ‘‘Environmental Analysis 

Check List’’ and a ‘‘Categorical 

Exclusion Determination’’ are not 

required for this rule.

List of Subjects in 33 CFR Part 117

Bridges.

Regulations 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows:

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for Part 117 

continues to read as follows:

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 

section 117.255 also issued under authority 

of Pub. L. 102–587, 106 Stat. 5039.

2. From 6:15 a.m. until 9:20 a.m. on 

January 30, 2005, in § 117.261, 

paragraph (nn) is suspended and a new 

paragraph (tt) is added to read as 

follows:

§ 117.261 Atlantic Intracoastal Waterway 

from St. Marys River to Key Largo.

* * * * *

(tt) West Span of the Venetian 

Causeway, mile 1088.6 at Miami. The 

draw need not open from 6:15 a.m. until 

9:20 a.m. on January 30, 2005. Public 

vessels of the United States and vessels 

in distress shall be passed at any time. 

3. From 6:05 a.m. until 8:40 a.m. on 

January 30, 2005, in § 117.269, 

temporarily designate the existing 

regulatory text as paragraph (a); suspend 

paragraph (a); and add a new paragraph 

(b) to read as follows:

§ 117.269 Biscayne Bay.

* * * * *

(b) The draw of the east span of the 

Venetian Causeway bridge across Miami 

Beach Channel need not open from 6:05 

a.m. to 8:40 a.m. on January 30, 2005. 

Public vessels of the United States and 

vessels in distress shall be passed at any 

time. 

4. From 6:25 a.m. until 10 a.m. on 

Sunday, January 30, 2005, in § 117.305, 

paragraphs (c) and (d) are suspended 

and new paragraphs (e) and (f) are 

added to read as follows:

§ 117.305 Miami River.

* * * * *

(e) The draw of each bridge from the 

mouth of the Miami River, to and 

including the NW. 27th Avenue bridge, 

mile 3.7 at Miami, except the Miami 

Avenue and Brickell Avenue bridges, 

shall open on signal. 

(f) The Miami Avenue bridge, across 

the Miami River, need not open from 

6:25 a.m. to 10 a.m. on Sunday, January 

30, 2005, and the Brickell Avenue 

bridge, across the Miami River, need not 

open from 7:10 a.m. to 12:05 p.m. on 

Sunday, January 30, 2005. Public 

vessels of the United States and vessels 

in an emergency involving danger to life 

or property shall be passed at any time.

Dated: November 17, 2004. 

D. Brian Peterman, 

Rear Admiral, U.S. Coast Guard, Commander, 

Seventh Coast Guard District.

[FR Doc. 04–26339 Filed 11–29–04; 8:45 am] 

BILLING CODE 4910–15–P

DEPARTMENT OF DEFENSE

Department of the Army, Corps of 

Engineers 

33 CFR Part 330

RIN 0710–AA60

Nationwide Permit Program

AGENCY: U.S. Army Corps of Engineers, 

DoD.

ACTION: Proposed rule.

SUMMARY: The U.S. Army Corps of 

Engineers is proposing to amend its 

nationwide permit regulations. We are 

proposing to modify the nationwide 

permit regulations so that district 

engineers can issue nationwide permit 

verification letters that expire on the 

same date the nationwide permit 

expires. This amendment will allow 

district engineers to issue that 

nationwide permit verifications are 

valid throughout the period of time the 

nationwide permit is in effect, to 

provide regulatory flexibility and 

efficiency. We are also proposing to 

increase the 30-day pre-construction 

notification review period to 45 days, to 

conform with nationwide permit general 

condition 13. Since the nationwide 

permit regulations were last amended in 

1991, there have been changes to related

69564 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

regulations and policies that have 

generally increased the complexity of 

reviews of nationwide permit preconstruction notifications. The 45-day 

pre-construction notification review 

period will provide district engineers 

with time to effectively review proposed 

nationwide permit activities that require 

notification, as well as compensatory 

mitigation proposals, to determine 

whether those activities meet the terms 

and conditions of the nationwide 

permits and result in minimal adverse 

environmental effects.

DATES: Submit comments on or before 

January 31, 2005.

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 

On November 22, 1991, (56 FR 59110) 

the U.S. Army Corps of Engineers 

Corps) revised 33 CFR part 330, the 

regulations for implementing its 

nationwide permit (NWP) program. 

Section 330.6(a)(3)(ii) of this regulation 

states that NWP verification letters can 

be valid for no more than two years. 

Section 330.1(e) provides district 

engineers with 30 days to review 

notifications to determine whether 

proposed NWP activities are in the 

public interest and result in minimal 

individual and cumulative adverse 

environmental effects. Since 1991, there 

have been substantial changes to the 

NWP program that warrant amendments 

to these provisions.

We are proposing to amend 

§ 330.6(a)(3)(ii) to allow district 

engineers to issue NWP verification 

letters that expire on the same date the 

NWP expires. An NWP verification 

letter provides confirmation that a 

particular activity is authorized by 

NWP. This amendment will help 

promote administrative efficiency by 

eliminating the two year limit for NWP 

verification letters, so that it will not be 

necessary for district engineers to 

reverify an NWP authorization when the 

permittee has not completed the 

authorized work within two years. In 

many cases, a project proponent must 

obtain state and local authorizations 

before proceeding with a project. That 

process can take more than two years. 

We believe the flexibility and efficiency 

of the NWP Program would be improved 

if this regulation is modified to allow 

district engineers to issue NWP 

verification letters that expire at the 

same time the NWP expires. This will 

allow the NWP program to 

accommodate state and local planning 

and regulatory processes, without 

diminishing protection of the aquatic 

environment. 

The two year limit for verification 

letters was intended to allow for 

adjustments or clarifications of 

jurisdiction, policy, and procedure. It 

has been our experience that we seldom 

need to change NWP verification letters 

between the date the verification letter 

is issued and the expiration date of the 

NWP. If such changes are necessary, 

district engineers may use the 

procedures at § 330.5(d) to modify, 

suspend, or revoke a case-specific NWP 

authorization. In most cases, the five 

year time limit for NWPs is adequate for 

accounting for changes in jurisdiction, 

policy, and procedure. District 

engineers will have the option of issuing 

NWP verification letters for shorter time 

periods, to address concerns for the 

aquatic environment or other public 

interest review factors. 

We are also proposing to amend the 

NWP regulations to increase the preconstruction notification (PCN) review 

period from 30 days to 45 days. The 

purpose of the PCN review period, and 

the de facto authorization that results if 

the district engineer does not respond to 

a PCN during that review period, is to 

provide some regulatory certainty to the 

public by requiring district engineers to 

respond to NWP PCNs in a timely 

manner. 

When we reissued NWP 26 on 

December 13, 1996, (61 FR 65874) we 

increased the PCN review period for 

proposed NWP 26 activities resulting in 

the loss of greater than one-third acre of 

waters of the United States from 30 days 

to 45 days. When we issued five new 

and six modified NWPs to replace NWP 

26 on March 9, 2000, (65 FR 12818) we 

increased the review period for all 

proposed NWP activities that require 

PCNs to 45 days. The 45-day PCN 

review period was retained in the 

January 15, 2002, reissuance of the 

NWPs (67 FR 2020). 

Since 1991, there have been new and 

modified Federal regulations that have 

affected the implementation of the NWP 

program, and increased the amount of 

time required to review PCNs. For 

example, the National Marine Fisheries 

Service (NMFS) issued regulations for 

implementing the Essential Fish Habitat 

(EFH) provisions of the MagnusonStevens Fishery Conservation and 

Management Act that require 

consultation for activities that may 

adversely affect EFH. Current 

regulations for implementing the EFH 

provisions require Federal agencies to 

provide NMFS 30 days to respond to 

EFH Assessments (see 50 CFR 600.920). 

There have also been changes to the 

Regulatory Program’s compensatory 

mitigation policies, such as the issuance 

of Regulatory Guidance Letter 02–02 on 

December 24, 2002, and the issuance of 

Mitigation Action Plan items. 

Compensatory mitigation proposals can 

be complex documents that require 

technical review to determine whether 

the proposed compensatory mitigation 

projects are feasible and will effectively 

offset authorized losses of aquatic 

resources. 

Prior to issuing NWP verification 

letters, district engineers review 

compensatory mitigation proposals to 

determine whether the proposed 

compensatory mitigation is sufficient to 

ensure that the authorized work will 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment and other public 

interest factors. The 45-day review 

period would provide district engineers 

with time to effectively review 

compensatory mitigation proposals 

submitted with PCNs. 

Amending the NWP regulations by 

increasing the 30-day PCN review 

period to 45 days will not adversely 

affect processing times for NWP 

verification requests. As discussed 

above, the 45-day PCN review period 

was adopted in 1996 for NWP 26, and 

was applied to all NWPs requiring PCNs 

in 2000. In FY 2003, the average 

processing time for an NWP verification 

request was 27 days. We believe that the 

average processing times for NWP 

verification requests will continue to be 

less than 30 days if the proposed rule 

change is adopted since the proposed 

modification reflects current NWP PCN 

processing practices. 

We are also proposing to amend 

§§ 330.4(c)(6) and 330.4(d)(6) by 

replacing the 30-day review period with 

the proposed 45-day review period and 

replacing the term ‘‘pre-discharge 

notification’’ with ‘‘pre-construction 

notification’’ to be consistent with 

current terminology used in the NWP 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69565

program. The term ‘‘pre-construction 

notification’’ is more appropriate, since 

nationwide permits may authorize, in 

addition to discharges of dredged or fill 

material into waters of the United 

States, construction activities in 

navigable waters of the United States. 

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. The use of ‘‘we’’ in this 

notice refers to the Corps. We have also 

used the active voice, short sentences, 

and common everyday terms except for 

necessary technical terms. 

Paperwork Reduction Act 

This proposed action will not impose 

any new information collection burden 

under the provisions of the Paperwork 

Production Act (44 U.S.C. 3501 et seq.). 

For NWPs that require PCNs, the 

proposed modification changes the 30-

day review period to a 45-day review 

period. In addition, the proposed rule 

changes the length of time an NWP 

verification letter could be valid. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to, or for, a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information.

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, 

which expires December 31, 2004). 

Since the proposed rule does not 

involve any additional collection of 

information from the public, this action 

is not subject to the Paperwork 

Reduction Act. 

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 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 

the proposed rule is not a ‘‘significant 

regulatory action’’ because it does not 

meet any of these four criteria. The 

proposed rule is a modification of 

existing procedures. For NWPs that 

require PCNs, the proposed rule 

increases the 30-day review period to 45 

days. In addition, the proposed rule 

changes the length of time an NWP 

verification letter could be valid. 

Executive Order 13132

Executive Order 13132, entitled 

‘‘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 phrase ‘‘policies that 

have Federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’

The proposed rule does not have 

Federalism implications. We do not 

believe that amending the regulation to 

increase the NWP PCN review period or 

increase the length of time an NWP 

verification letter may be valid 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 proposed rule 

does not impose new substantive 

requirements. In addition, the proposed 

changes will not impose any additional 

substantive obligations on State or local 

governments. Therefore, Executive 

Order 13132 does not apply to this 

proposed rule. 

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 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 this proposed rule 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-forprofit 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, we believe that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. The proposed rule is consistent 

with current agency practice, does not 

impose new substantive requirements, 

and therefore would not have a 

significant economic impact on a 

substantial number of small entities. 

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 costbenefit analysis, for proposed and final 

69566 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

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. 

We have determined that the 

proposed rule 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. The proposed rule is 

consistent with current agency practice, 

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, the 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 rule contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Therefore, the 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 proposed rule is not subject to 

this Executive Order because it is not 

economically significant as defined in 

Executive Order 12866. In addition, it 

does not concern an environmental or 

safety risk that we have reason to 

believe may have a disproportionate 

effect on children. 

Executive Order 13175

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 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 that have 

‘‘substantial direct effects on one or 

more Indian tribes, 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 proposed rule does not have 

tribal implications. It will not have 

substantial 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. It is generally consistent with 

current agency practice and does not 

impose new substantive requirements. 

Therefore, Executive Order 13175 does 

not apply to this proposed rule. 

Environmental Documentation 

The Corps prepares 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 proposed rule. 

Appropriate environmental 

documentation has been prepared for 

each NWP.

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 this 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 rule is 

not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

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 

because of their race, color, or national 

origin. 

The proposed rule 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. 

Executive Order 13211 

The proposed rule 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. 

The proposed rule updates regulations 

for implementing the Nationwide 

Permit Program. The proposed rule is 

consistent with current agency practice, 

does not impose new substantive 

requirements and therefore will not 

have a significant adverse effect on the 

supply, distribution, or use of energy.

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69567

List of Subjects in 33 CFR Part 330 

Administrative practice and 

procedure, Intergovernmental relations, 

Navigation (water), Water pollution 

control, Waterways.

Dated: November 23, 2004. 

Don T. Riley, 

Major General, U.S. Army, Director of Civil 

Works.

For the reasons stated in the 

preamble, the Corps proposes to amend 

33 CFR part 330 as follows:

PART 330—NATIONWIDE PERMIT 

PROGRAM 

1. 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.

2. Amend § 330.1 by revising 

paragraph (e)(1) to read as follows:

§ 330.1 Purpose and policy.

* * * * *

(e) * * * (1) In most cases, permittees 

may proceed with activities authorized 

by NWPs without notifying the DE. 

However, the prospective permittee 

should carefully review the language of 

the NWP to ascertain whether he must 

notify the DE prior to commencing the 

authorized activity. For NWPs requiring 

advance notification, such notification 

must be made in writing as early as 

possible prior to commencing the 

proposed activity. The permittee may 

presume that his project qualifies for the 

NWP unless he is otherwise notified by 

the DE within a 45-day period. The 45-

day period starts on the date of receipt 

of the notification in the Corps district 

office and ends 45 calendar days later 

regardless of weekends or holidays. If 

the DE notifies the prospective 

permittee that the notification is 

incomplete, a new 45-day period will 

commence upon receipt of the revised 

notification. The prospective permittee 

may not proceed with the proposed 

activity before expiration of the 45-day 

period unless otherwise notified by the 

DE. If the DE fails to act within the 45-

day period, he must use the procedures 

of 33 CFR 330.5 in order to modify, 

suspend, or revoke the NWP 

authorization.

* * * * *

3. Amend § 330.4 by revising 

paragraphs (c)(6) and (d)(6) to read as 

follows:

§ 330.4 Conditions, limitations, and 

restrictions.

* * * * *

(c) * * * 

(6) In instances where a state has 

denied the 401 water quality 

certification for discharges under a 

particular NWP, permittees must 

furnish the DE with an individual 401 

water quality certification or a copy of 

the application to the state for such 

certification. For NWPs for which a state 

has denied the 401 water quality 

certification, the DE will determine a 

reasonable period of time after receipt of 

the request for an activity-specific 401 

water quality certification (generally 60 

days), upon the expiration of which the 

DE will presume state waiver of the 

certification for the individual activity 

covered by the NWPs. However, the DE 

and the state may negotiate for 

additional time for the 401 water quality 

certification, but in no event shall the 

period exceed one (1) year (see 33 CFR 

325.2(b)(1)(ii)). Upon receipt of an 

individual 401 water quality 

certification, or if the prospective 

permittee demonstrates to the DE state 

waiver of such certification, the 

proposed work can be authorized under 

the NWP. For NWPs requiring a 45-day 

pre-construction notification the district 

engineer will immediately begin, and 

complete, his review prior to the state 

action on the individual section 401 

water quality certification. If a state 

issues a conditioned individual 401 

water quality certification for an 

individual activity, the DE will include 

those conditions as activity-specific 

conditions of the NWP.

* * * * *

(d) * * * 

(6) In instances where a state has 

disagreed with the Corps consistency 

determination for activities under a 

particular NWP, permittees must 

furnish the DE with an individual 

consistency concurrence or a copy of 

the consistency certification provided to 

the state for concurrence. If a state fails 

to act on a permittee’s consistency 

certification within six months after 

receipt by the state, concurrence will be 

presumed. Upon receipt of an 

individual consistency concurrence or 

upon presumed consistency, the 

proposed work is authorized if it 

complies with all terms and conditions 

of the NWP. For NWPs requiring a 45-

day pre-construction notification the DE 

will immediately begin, and may 

complete, his review prior to the state 

action on the individual consistency 

certification. If a state indicates that 

individual conditions are necessary for 

consistency with the state’s Federallyapproved coastal management program 

for that individual activity, the DE will 

include those conditions as activityspecific conditions of the NWP unless 

he determines that such conditions do 

not comply with the provisions of 33 

CFR 325.4. In the latter case the DE will 

consider the conditioned concurrence as 

a non-concurrence unless the permittee 

chooses to comply voluntarily with all 

the conditions in the conditioned 

concurrence.

* * * * *

4. Amend § 330.6 by revising 

paragraph (a)(3)(ii) to read as follows:

§ 330.6 Authorization by nationwide 

permit. 

(a) * * * 

(3) * * * 

(ii) The DE’s response will state that 

the verification is valid for a specific 

period of time (generally until the 

expiration date of the NWP ) unless the 

NWP authorization is modified, 

suspended, or revoked. The response 

should also include a statement that the 

verification will remain valid for the 

specified period of time, if during that 

time period, the NWP authorization is 

reissued without modification or the 

activity complies with any subsequent 

modification of the NWP authorization. 

Furthermore, the response should 

include a statement that the provisions 

of § 330.6(b) will apply, if during that 

period of time, the NWP authorization 

expires, or is suspended or revoked, or 

is modified, such that the activity would 

no longer comply with the terms and 

conditions of an NWP. 

Finally, the response should include 

any known expiration date that would 

occur during the specified period of 

time. A period of time less than the 

amount of time remaining until the 

expiration date of the NWP may be used 

if deemed appropriate.

* * * * *

[FR Doc. 04–26263 Filed 11–29–04; 8:45 am] 

BILLING CODE 3710–92–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52

[R05–OAR–2004–IN–0005; FRL–7838–2] 

Approval and Promulgation of Air 

Implementation Plans; Indiana; Rules 

To Control Particulate Matter and 

Carbon Monoxide Emissions From 

Incinerators

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing to 

approve, through direct final procedure, 

a revision to a plan submitted by 

Indiana concerning emissions of carbon 

monoxide (CO) and particulate matter