Federal Register / Vol. 89, No. 28 / Friday, February 9, 2024 / Proposed Rules 9079 

1The Commission voted 4–0 to publish this 

notification. 

Instructions: All submissions must 

include the agency name and docket 

number. CPSC may post all comments 

without change, including any personal 

identifiers, contact information, or other 

personal information provided, to 

https://www.regulations.gov. If you wish 

to submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

that you do not want to be available to 

the public, you may submit such 

comments by mail, hand delivery, or 

courier, or you may email them to: cpscos@cpsc.gov. 

Docket: For access to the docket to 

read background documents or 

comments received, go to: https://

www.regulations.gov, and insert the 

docket number, CPSC–2022–0017, into 

the ‘‘Search’’ box, and follow the 

prompts. 

FOR FURTHER INFORMATION CONTACT: 

Scott Ayers, U.S. Consumer Product 

Safety Commission, 5 Research Place, 

Rockville, MD 20850; telephone: 301– 

987–2030; email: sayers@cpsc.gov. 

SUPPLEMENTARY INFORMATION: The 

PFCSA requires the Commission to 

promulgate a final rule to require flame 

mitigation devices in portable fuel 

containers that impede the propagation 

of flame into the container. 15 U.S.C. 

2056d(b)(1)–(2). However, the 

Commission is not required to 

promulgate a final rule for a class of 

portable fuel containers within the 

scope of the PFCSA if the Commission 

determines that: 

• there is a voluntary standard for 

flame mitigation devices for those 

containers that impedes the propagation 

of flame into the container; 

• the voluntary standard is or will be 

in effect not later than 18 months after 

the date of enactment of the PFCSA; and 

• the voluntary standard is developed 

by ASTM International or such other 

standard development organization that 

the Commission determines to have met 

the intent of the PFCSA. 

15 U.S.C. 2056d(b)(3)(A). After 

publication of the Federal Register 

notification announcing the 

Commission’s positive determination, 

the requirements of such a voluntary 

standard ‘‘shall be treated as a consumer 

product safety rule.’’ 15 U.S.C. 

2056d(b)(2)(B) and (b)(4). Under this 

authority, on January 13, 2023, the 

Commission published a notification 

determining that three voluntary 

standards for portable fuel containers 

meet the requirements of the PFCSA 

and would be treated as consumer 

product safety rules: ASTM F3429/ 

F3429M–20 (pre-filled containers); 

ASTM F3326–21 (containers sold 

empty); and section 18 of UL 30:2022 

(safety cans). 88 FR 2206. 

Portable fuel containers sold pre-filled 

are within the scope of ASTM F3429/ 

F3429M, Standard Specification for 

Performance of Flame Mitigation 

Devices Installed in Disposable and PreFilled Flammable Liquid Containers. 

ASTM lists the standard as a dual 

standard in inch-pound units (F3429 

designation) and metric units (F3429M 

designation). ASTM F3429/F3429M was 

first published in 2020. ASTM 

published a revised version of ASTM 

F3429/F3429M–20 in May 2023, as 

ASTM F3429/F3429M–23. On August 

22, 2023, the Commission determined 

that the 2023 revisions met the 

requirements of section 2056d(b)(3)(A) 

of the PFCSA. Accordingly, ASTM 

F3429/F3429M–23 is the current 

mandatory consumer product safety rule 

for pre-filled-portable fuel containers. 

On October 31, 2023, the Commission 

published a direct final rule creating 16 

CFR part 1461 for portable fuel 

containers to incorporate by reference 

the revised ASTM F3429/F3429M–23, 

as well as ASTM F3326–21 and section 

18 of UL 30:2022.5. 88 FR 74342. 

Under section (b)(5) of the PFCSA, if 

the requirements of a voluntary 

standard that meet the requirements of 

section (b)(3) are subsequently revised, 

the organization that revised the 

standard shall notify the Commission 

after the final approval of the revision. 

15 U.S.C. 2056d(b)(5). Any such 

revision to the voluntary standard shall 

become enforceable as the new 

consumer product safety rule not later 

than 180 days after the Commission is 

notified of a revised voluntary standard 

that meets the conditions of section 

(b)(3) (or such later date as the 

Commission determines appropriate), 

unless the Commission determines, 

within 90 days after receiving the 

notification, that the revised voluntary 

standard does not meet the 

requirements described in section (b)(3) 

of the PFCSA. 15 U.S.C. 2056d(b)(5). 

On January 29, 2024, ASTM notified 

the Commission that it had approved 

and published ASTM F3429/F3429M– 

24. CPSC staff is assessing the revised 

voluntary standard to determine, 

consistent with section (b)(5) of the 

PFCSA, whether the revisions in ASTM 

F3429/F3429M–24 meet the 

requirements of section (b)(3)(A) of the 

PFCSA listed above. The Commission 

invites public comment on that question 

to inform staff’s assessment and any 

subsequent Commission consideration 

of the revisions in ASTM F3429/ 

F3429M–24.1

ASTM F3429/F3429M–24 is available 

for review in several ways. ASTM has 

provided on its website (at 

www.astm.org/CPSC.htm), at no cost, a 

read-only copy of ASTM F3429/ 

F3429M–24, including a red-lined 

version that identifies the changes made 

to ASTM F3429/F3429M–23. A readonly copy of the existing standard 

(ASTM F3429/F3429M–23) is available 

for viewing, at no cost, on the ASTM 

website at: www.astm.org/ 

READINGLIBRARY/. Interested parties 

can also download copies of the 

standards by purchasing them from 

ASTM International, 100 Barr Harbor 

Drive, P.O. Box C700, West 

Conshohocken, PA 19428–2959; phone: 

610–832–9500; https://www.astm.org. 

Alternatively, interested parties can 

schedule an appointment to inspect 

copies of the standards at CPSC’s Office 

of the Secretary, U.S. Consumer Product 

Safety Commission, 4330 East West 

Highway, Bethesda, MD 20814, 

telephone: 301–504–7479. 

Comments must be received by 

February 23, 2024. Because of the short 

statutory time frame Congress 

established for the Commission to 

consider revised voluntary standards 

under section (b)(5) of the PFCSA, CPSC 

will not consider comments received 

after this date. 

Alberta E. Mills, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. 2024–02562 Filed 2–8–24; 8:45 am] 

BILLING CODE 6355–01–P 

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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
9080 Federal Register / Vol. 89, No. 28 / Friday, February 9, 2024 / Proposed Rules 

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: historicpropertyreg@

usace.army.mil. 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, historicpropertyreg@

usace.army.mil, 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 


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1https://www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-and-Permits/ 

Nationwide-Permits/, last accessed January 17, 

2023. 

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 fiveyear timeframe.1

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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
9082 Federal Register / Vol. 89, No. 28 / Friday, February 9, 2024 / Proposed Rules 

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 nonfederally 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 


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2https://usace.contentdm.oclc.org/utils/getfile/ 

collection/p16021coll11/id/2478 (accessed April 3, 

2022). 

3https://usace.contentdm.oclc.org/utils/getfile/ 

collection/p16021coll11/id/4042 (accessed April 3, 

2022). 

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 governmentto-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 nonregulation 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. 

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. 

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 


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4https://api.army.mil/e2/c/downloads/2022/12/ 

08/7e19d5a2/modernize-civil-works-frn-commentson-appendix-c.pdf (accessed April 19, 2023). 

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. 

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. 


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5https://api.army.mil/e2/c/downloads/2022/12/ 

08/7e19d5a2/modernize-civil-works-frn-commentson-appendix-c.pdf, last accessed on April 19, 2023. 

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

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-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, 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
9086 Federal Register / Vol. 89, No. 28 / Friday, February 9, 2024 / Proposed Rules 

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 costbenefit 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 § 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, 


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6See E.O. 14096, Section 2, 88 FR 25,251 (Apr. 

26, 2023); see also E.O. 12898, 59 FR 7629 (Feb. 16, 

1994). 

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 foreignbased 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. 

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 

■ 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. 

■ 2. Amend § 325.2 by revising 

paragraph (b)(3) to read as follows: 

§ 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] 

■ 3. Remove Appendix C to part 325. 

PART 330—NATIONWIDE PERMIT 

PROGRAM 

■ 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. 

■ 5. Amend § 330.4 by revising 

paragraph (g) to read as follows: 

§ 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 


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