Federal Register / Vol. 76, No. 221 / Wednesday, November 16, 2011 / Proposed Rules 70927 

(b) Legally sufficient justification. A 

legally sufficient justification exists 

where the challenged housing practice: 

(1) Has a necessary and manifest 

relationship to one or more legitimate, 

nondiscriminatory interests of the 

respondent, with respect to claims 

brought under 42 U.S.C. 3610, or 

defendant, with respect to claims 

brought under 42 U.S.C. 3613 or 3614; 

and (2) those interests cannot be served 

by another practice that has a less 

discriminatory effect. The burdens of 

proof for establishing each of the two 

elements of a legally sufficient 

justification are set forth in 

§ 100.500(c)(2)–(c)(3). 

(c) Burdens of proof in discriminatory 

effects cases. 

(1) A complainant, with respect to 

claims brought under 42 U.S.C. 3610, or 

a plaintiff, with respect to claims 

brought under 42 U.S.C. 3613 or 3614, 

has the burden of proving that a 

challenged practice causes a 

discriminatory effect. 

(2) Once a complainant or plaintiff 

satisfies the burden of proof set forth in 

paragraph (c)(1) of this section, the 

respondent or defendant has the burden 

of proving that the challenged practice 

has a necessary and manifest 

relationship to one or more legitimate, 

nondiscriminatory interests of the 

respondent or defendant. 

(3) If the respondent or defendant 

satisfies the burden of proof set forth in 

paragraph (c)(2) of this section, the 

complainant or plaintiff may still 

prevail upon demonstrating that the 

legitimate, nondiscriminatory interests 

supporting the challenged practice can 

be served by another practice that has a 

less discriminatory effect. 

(d) Relationship to discriminatory 

intent. A demonstration that a housing 

practice is supported by a legally 

sufficient justification, as defined in 

§ 100.500(b), may not be used as a 

defense against a claim of intentional 

discrimination. 

Dated: October 4, 2011. 

John Trasvin ̃ a, 

Assistant Secretary for Fair Housing and 

Equal Opportunity. 

[FR Doc. 2011–29515 Filed 11–15–11; 8:45 am] 

BILLING CODE 4210–67–P 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Chapter II 

USACE’s Plan for Retrospective 

Review Under E.O. 13563 

AGENCY: U.S. Army Corps of Engineers, 

DoD. 

ACTION: Notice of intent and request for 

comments. 

SUMMARY: The U.S. Army Corps of 

Engineers (USACE) is seeking public 

input on its plan to retrospectively 

review its Regulations implementing the 

USACE Regulatory Program at 33 CFR 

parts 320–332 and 334. Executive Order 

13563, ‘‘Improving Regulation and 

Regulatory Review’’ (E.O.), issued on 

January 18, 2011, directs Federal 

agencies to review existing significant 

regulations and identify those that can 

be made more effective or less 

burdensome in achieving regulatory 

objectives. The Regulations are essential 

for implementation of the Regulatory 

mission; thus, USACE believes they are 

a significant rule warranting review 

pursuant to E.O. 13563. The E.O. further 

directs each agency to periodically 

review its existing significant 

regulations to determine whether any 

such regulations should be modified, 

streamlined, expanded, or repealed so 

as to make the agency’s regulatory 

program more effective or less 

burdensome in achieving the regulatory 

objectives. Section 404(e) of the Clean 

Water Act authorizes USACE to 

development general permits, including 

nationwide permits (NWPs), for minor 

activities in waters of the U.S. for a 

period of five years. Accordingly, every 

five years, USACE undergoes a 

reauthorization process for the NWP 

program and includes public notice and 

provides an opportunity for public 

hearing. Comments for the NWP 

program are submitted during the 

reauthorization process. Therefore, 

USACE is currently complying with the 

E.O. 13563 direction to periodically 

review its existing significant 

regulations. Other regulations will be 

reviewed on an as-needed basis in 

accordance with new laws, court cases, 

etc. 

DATES: Written comments must be 

submitted on or before January 17, 2012. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2011–0028, by any of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Email: 

regulatory.review@usace.army.mil 

Include the docket number, COE–2011– 

0028, in the subject line of the message. 

Mail: U.S. Army Corps of Engineers, 

ATTN: CECW–CO–R (Ms. Amy S. 

Klein), 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: Direct your comments to 

docket number COE–2011–0028. 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 Web site 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 disk or CD–ROM 

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 http:// 

www.regulations.gov. All documents in 

the docket are listed. Although listed in 

the index, some information is not 

publicly available, such as CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. 


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70928 Federal Register / Vol. 76, No. 221 / Wednesday, November 16, 2011 / Proposed Rules 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy S. Klein, Headquarters, U.S. Army 

Corps of Engineers, Operations and 

Regulatory Community of Practice, 

Washington, DC 20314–1000, by phone 

at (202) 761–4559 or by email at 

regulatory.review@usace.army.mil. 

SUPPLEMENTARY INFORMATION: 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review’’ 

(E.O.), was issued to improve regulation 

and regulatory review, which includes 

public participation, integration and 

innovation, flexible approaches, and 

science. Agencies shall consider how 

best to promote retrospective analysis of 

rules that may be outmoded, ineffective, 

insufficient, or excessively burdensome, 

and to modify, streamline, expand or 

repeal them. In accordance with the 

E.O., the USACE plan is to solicit 

comments on its Regulations to make 

the Regulatory Program more effective 

and less burdensome. 

The USACE Regulatory Program’s 

regulations are found at 33 CFR parts 

320–332 and 334. The current 

Regulations were published in the 

Federal Register on November 13, 1986 

(51 FR 41206). These Regulations 

describe the fundamental procedures, 

policies, authorities, and guidelines of 

the U.S. Army Corps of Engineer’s 

Regulatory Program. Since the 1986 

Regulations were issued, parts of these 

regulations have been modified. The 

changes that have occurred since 1986 

include, but are not limited to: the 

Nationwide Permit regulations at 33 

CFR part 330 were amended on 

November 22, 1991 (56 FR 59110); 

regulations governing the administrative 

appeal program at 33 CFR part 331 were 

added on March 9, 1999 (64 FR 11708) 

and March 28, 2000 (65 FR 16486); 

regulations addressing compensatory 

mitigation for losses of aquatic resources 

at 33 CFR part 332 were added on April 

10, 2008 (73 FR 19594); further 

revisions to the Clean Water Act 

regulatory definition of dredged 

material at 33 CFR part 323 were made 

on January 17, 2001 (66 FR 4550); final 

revisions to the Clean Water Act 

definitions of fill materials and 

discharge of fill material at 33 CFR part 

323 were made on May 9, 2002 (67 FR 

31129); revisions to the Clean Water Act 

regulatory definition of ‘‘discharge of 

dredged material’’ Final Rule at 33 CFR 

part 323 were made on December 30, 

2008 (73 FR 79641); updates regarding 

structures in fairways and anchorage 

areas at 33 CFR part 322 were added on 

Aug. 29, 1995 (60 FR 44761); a 

requirement for an avoidance, 

minimization and compensation 

statement in applications for activities 

involving discharge of dredged or fill 

material at 33 CFR part 325 was added 

on April 10, 2008 (73 FR 19670); 

amended Administrative Penalties on 

June 25, 2004 (69 FR 35518; 33 CFR part 

326); the civil monetary penalty 

inflation adjustment rule at 33 CFR part 

326 was added on June 25, 2004 (69 FR 

35515); minor editorial changes to 

reflect the change in title of the National 

Ocean Service and address at 33 CFR 

part 325 were made on May 13, 1997 (62 

FR 26230). In accordance with the E.O., 

the USACE plan is to solicit comments 

regarding the questions posed below in 

the Proposal Section in order to achieve 

the goals of the E.O. to make regulations 

more effective and less burdensome. 

The E.O. further directs each agency 

to periodically review its existing 

significant regulations to determine 

whether any such regulations should be 

modified, streamlined, expanded, or 

repealed to make the agency’s regulatory 

program more effective or less 

burdensome in achieving the regulatory 

objectives. The USACE is proposing the 

existing five-year reauthorization 

process of the NWPs, general 

conditions, and definitions as the 

periodic review of regulations. 

Section 404(e) of the Clean Water Act 

provides the statutory authority for the 

Secretary of the Army, after notice and 

opportunity for public hearing, to issue 

general permits on a nationwide basis 

for any category of activities involving 

discharges of dredged or fill material 

into waters of the United States. 

Activities authorized by NWPs must be 

similar in nature, cause only minimal 

adverse environmental effects when 

performed separately, and cause only 

minimal cumulative adverse effect on 

the aquatic environment. The NWP 

program is designed to provide timely 

authorizations for the regulated public 

while protecting the Nation’s aquatic 

resources. The NWP program allows the 

Corps to authorize activities with 

minimal adverse environmental impacts 

on the aquatic environment in a timely 

manner. The NWP program also allows 

the Corps to focus its limited resources 

on more extensive evaluation of projects 

that have the potential for causing 

environmentally damaging adverse 

effects. 

Each five-year review of the NWPs 

allows for revision of the NWPs, general 

conditions, and definitions to facilitate 

clarity for the regulated public, 

government personnel, and interested 

parties, while ensuring protection of the 

aquatic environment. Making the text of 

the NWPs clearer and easier to 

understand also facilitates compliance 

with these permits, which benefits the 

aquatic environment. 

During the NWP reissuance process, 

there is a request for public comments 

published in the Federal Register, 

which complies with the E.O. general 

principle of allowing for public 

participation and an open exchange of 

ideas. While anyone, at any time, may 

submit suggestions to Corps 

Headquarters for new NWPs or changes 

to existing NWPs, comments for the 

NWP program are normally submitted 

during the reauthorization process; the 

most recent notice requesting comments 

on the NWP program occurred in the 

Federal Register published on February 

16, 2011 (76 FR 9174), with the 

comment period ending on April 18, 

2011. Therefore, USACE is currently 

complying with the E.O. 13563 

direction to periodically review its 

existing significant regulations. 

However, there may be additional ways 

in which the NWP reauthorization 

process may further comply with E.O. 

13563. 

The E.O.’s intent is to ensure that 

regulations are accessible, consistent, 

written in plain language and are easy 

to understand, while protecting public 

health, welfare, safety, and our 

environment while promoting economic 

growth, innovation, competitiveness, 

and job creation. These goals are what 

the Regulations improvement and the 

periodic reissuance of the NWP program 

would accomplish. 

Proposal 

To comply with E.O. 13563, the 

publication of the Federal Register 

notice to solicit comments on how the 

Regulations should be evaluated for 

modification, streamlining, expansion, 

or repeal is the USACE’s first step to 

develop a plan that ensures that the 

agency’s regulations are effective and 

not burdensome. Furthermore, 

comments are requested pursuant to the 

E.O. directing each agency to 

periodically review its existing 

significant regulations to determine 

whether any such regulations should be 

modified, streamlined, expanded, or 

repealed so as to make the agency’s 

regulatory program more effective or 

less burdensome in achieving the 

regulatory objectives. The publication of 

the Federal Register notice to solicit 

comments on the existing NWP Program 

re-authorization process every five years 

is part of USACE’s plan to ensure the 

periodic review of regulations. 

Input from a wide variety of 

constituents is important, and 

applicants, affected landowners, the 

general public, consultants, tribal, state 

and local government, and other 

agencies are likely to have knowledge 

about the full effects of the regulations 


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Federal Register / Vol. 76, No. 221 / Wednesday, November 16, 2011 / Proposed Rules 70929 

on people and the economy, and to offer 

ideas on how to streamline or improve 

them. This request for information will 

inform the USACE’s decision on 

whether adjustment to the regulation is 

necessary and appropriate, and whether 

additional guidance, education, or 

outreach would better assist the 

Regulation’s users, agencies, and the 

public to address critical issues. 

The URL for a Web site that includes 

the Regulations, as well as all of the 

Corps Regulatory Program’s current 

regulations and supporting program 

data and information is http:// 

www.usace.army.mil/CECW/Pages/ 

reg_materials.aspx. Furthermore, each 

of the 38 Corps districts has issued local 

public notices announcing the 

publication of this Federal Register 

notice and the request for comments. 

The Corps will evaluate all comments 

received to develop its list of review 

priorities, and will publish a notice in 

the Federal Register that summarizes 

the comments received and lists the 

priorities. The Web site will be updated 

as proposed revisions and final 

revisions to its regulations occur. 

Please email your response to the 

questions below to 

regulatory.review@usace.army.mil and 

be sure to number your responses in 

association with each question. These 

questions are not intended to be 

exhaustive, and respondents are 

encouraged to raise additional issues or 

make suggestions unrelated to these 

questions. Respondents are also 

encouraged to share examples and a 

detailed explanation of how the 

suggestion will support the goals of the 

Regulations review process. We are 

seeking public comment for a period of 

60 days ending January 17, 2012, after 

which it will revise the plan and make 

it available to the public. 

1. How should the Corps modify its 

Regulations to ensure that they are 

serving their stated purpose efficiently 

and effectively? Please provide specific 

recommendations on edits that could be 

made and suggestions on appropriate 

outreach and timing. 

2. How can we reduce burdens and 

maintain flexibility for participants in 

the regulatory process in a way that will 

promote the protection of waters of the 

United States via the improvement of 

the Regulations? 

3. How can the process set forth in the 

Regulations better achieve simplified 

and efficient outcomes? 

4. How can the Regulations be 

changed to better harmonize with, be 

consistent with, and coordinate 

effectively with, other federal 

regulations and environmental review 

procedures? 

5. How can we ensure that 

information developed to support 

findings under the Regulations are 

guided by objective scientific evidence? 

6. Are there better ways to encourage 

public participation and an open 

exchange of views as part of the 

regulatory review? Please cite specific 

areas where improvements could be 

made and indicate what tools or 

mechanisms might be made available to 

achieve this goal. 

7. The NWP program allows for 

comment and periodic review during 

the reauthorization process every five 

years. How else can the periodic review 

of the NWP program be utilized to 

comply with this E.O.? 

8. How else might we modify, clarify, 

or improve the Regulations to reduce 

burdens, promote predictability, and 

increase efficiency? 

Authority 

We are proposing to improve the 

Regulations and comply with the 

direction to perform a periodic 

regulatory review with the existing 

reauthorization of the NWP program, 

which were issued under the authority 

of 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. 401 et seq.), and Section 103 of 

the Marine Protection Research and 

Sanctuaries Act of 1972 (33 U.S.C. 

1413). 

Dated: November 10, 2011. 

Approved. 

Michael G. Ensch, 

Chief, Operations and Regulatory, Directorate 

of Civil Works. 

[FR Doc. 2011–29633 Filed 11–15–11; 8:45 am] 

BILLING CODE 3720–58–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0913; FRL–9492–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; District 

of Columbia; Regional Haze State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the District of Columbia 

State Implementation Plan (SIP) 

submitted by the District of Columbia 

through the District Department of the 

Environment (DDOE) on October 27, 

2011 that addresses regional haze for the 

first implementation period. This 

revision addresses the requirements of 

the Clean Air Act (CAA) and EPA’s 

rules that require states to prevent any 

future, and remedy any existing, 

anthropogenic impairment of visibility 

in mandatory Class I areas caused by 

emissions of air pollutants from 

numerous sources located over a wide 

geographic area (also referred to as the 

‘‘regional haze program’’). States are 

required to assure reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas. EPA is proposing to determine 

that the Regional Haze plan submitted 

by the District of Columbia satisfies 

these requirements of the CAA. EPA is 

also proposing to approve this revision 

as meeting the infrastructure 

requirements relating to visibility 

protection for the 1997 8-Hour Ozone 

National Ambient Air Quality Standard 

(NAAQS) and the 1997 and 2006 fine 

particulate matter (PM2.5) NAAQS. 

DATES: Comments must be received on 

or before December 16, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2011–0913 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov 

C. Mail: EPA–R03–OAR–2011–0913, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2011– 

0913. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

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 http:// 

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 


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