[Federal Register Volume 80, Number 30 (Friday, February 13, 2015)]
[Proposed Rules]
[Pages 8014-8017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03033]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 203


Emergency Employment of Army and Other Resources, Natural 
Disaster Procedures

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Army Corps of Engineers (USACE) is issuing this 
advance notice of proposed rulemaking (ANPR) to request public comment 
on potential revisions to its regulations. USACE is specifically 
requesting input on potential changes to policies related to disaster 
preparedness; eligibility criteria for rehabilitation assistance for 
flood control works; options to address complex natural resource 
challenges while mitigating impacts to threatened or endangered 
species; and non-structural alternative projects. Consideration of 
Water Resources Reform and Development Act of 2014 provisions regarding 
resiliency for hurricane or shore protection projects, Section 3022, 
and the inclusion of modifications for hurricane or shore protection 
projects, Section 3029, are

[[Page 8015]]

not covered by this advanced notice of proposed rulemaking and may be 
addressed at a later date.

DATES: Comments must be received on or before April 14, 2015.

ADDRESSES: You may submit comments, identified by docket number COE-
2015-0004, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: <a href="/cdn-cgi/l/email-protection#d1e2e2929783e3e1e291a4a2b0b2b4ffb0a3bca8ffbcb8bd"><span class="__cf_email__" data-cfemail="0635354540543436354673756765632867746b7f286b6f6a">[email protected]</span></a> and include the docket number, COE-
2015-0004, in the subject line of the message.
    Mail: HQ, U.S. Army Corps of Engineers, ATTN: 33CFR203/CECW-HS/
3D64, 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-2015-0004. 
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 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 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.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey D. Jensen, Office of 
Homeland Security, Directorate of Contingency Operations, U.S. Army 
Corps of Engineers, at (703) 428-9068 or 
<a href="/cdn-cgi/l/email-protection#743e11121206110d5a305a3e111a07111a3401071517115a1506190d5a191d18"><span class="__cf_email__" data-cfemail="98d2fdfefeeafde1b6dcb6d2fdf6ebfdf6d8edebf9fbfdb6f9eaf5e1b6f5f1f4">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background

    A. Authority. Section 5 of the Flood Control Act of 1941, as 
amended, (33 U.S.C. 701n), commonly and hereinafter referred to as 
Public Law 84-99, authorizes an emergency fund to be expended at the 
discretion of the Chief of Engineers for: Preparation for natural 
disasters; flood fighting and rescue operations; repair or restoration 
of flood control works threatened, damaged, or destroyed by flood, or 
nonstructural alternatives thereto; emergency protection of federally 
authorized hurricane or shore protection projects which are threatened, 
when such protection is warranted to protect against imminent and 
substantial loss to life and property; and repair and restoration of 
federally authorized hurricane and shore protection projects damaged or 
destroyed by wind, wave, or water of other than ordinary nature. The 
law includes provision of emergency supplies of clean water when a 
contaminated source threatens the public health and welfare of a 
locality, and activities necessary to protect life and improved 
property from a threat resulting from a major flood or coastal storm. 
This law authorizes the Secretary of the Army (Secretary) to construct 
wells and to transport water within areas determined by the Secretary 
to be drought-distressed. The Secretary of the Army has delegated the 
authority vested in the Secretary under Public Law 84-99 through the 
Assistant Secretary of the Army (Civil Works) to the Chief of 
Engineers, subject to such further direction as the Secretary may 
provide.
    B. Need for Revision. The Code of Federal Regulations, 33 CFR part 
203, details administrative policies, guidance, and operating 
procedures for the Public Law 84-99 program and was last revised in 
2003, 68 FR 19357-01, 21 April 2003. Since then, significant disasters, 
including Hurricane Sandy (2012), flooding on the Mississippi and 
Missouri Rivers (2008, 2011, and 2013) and Hurricane Katrina (2005), 
provided information regarding system performance and the need for 
improved system and community resilience that should be considered in 
formulating revised Pub. L. 84-99 rehabilitation policies. A more 
detailed understanding of the nature and severity of risk associated 
with flood control projects and the development of risk-informed 
decision making approaches and other technological advancements have 
influenced the outlook about how Pub. L. 84-99 activities could be 
implemented with a shift towards better alignment with USACE's Levee 
Safety and National Flood Risk Management Programs as well as the 
National Preparedness and Response Frameworks. Both of these USACE 
programs work with non-federal sponsors and stakeholders to assess, 
communicate and manage the risks to people, property, and the 
environment associated with levee systems and flood risks. 
Additionally, significant input from state and federal agencies, 
stakeholders, and other interested parties regarding the challenges of 
satisfying USACE vegetation management guidelines in light of the needs 
of listed threatened and endangered species caused USACE to reevaluate 
using technical criteria to determine active status in the Public Law 
84-99 Rehabilitation Program.

II. References

    The following reference material is available on the Federal 
eRulemaking Portal at http://www.regulations.gov to assist the public 
in reviewing this ANPR and providing comments.

<bullet> 33 CFR part 203
<bullet> Engineer Regulation 500-1-1, ``Civil Emergency Management 
Program'', September 30, 2001
<bullet> Engineer Pamphlet 500-1-1, ``Civil Emergency Management 
Program Procedures'', September 30, 2001
<bullet> Engineering and Construction Bulletin, ``Interim Risk 
Reduction Measures (IRRMs) for Levee Safety'', March 5, 2014
<bullet> HQUSACE memorandum, ``Interim Policy Guidance for Eligibility 
Determinations'', March 21, 2014
<bullet> HQUSACE memorandum, ``Policy for Development and 
Implementation of System-Wide Improvement Frameworks (SWIFs)'', 
November 29, 2011
<bullet> Levee Owner's Manual for Non-Federal Flood Control Works, 
March 2006

[[Page 8016]]

III. General Information for the Advance Notice of Public Rulemaking

    A. Does this Action Apply to Me? This action is directed to the 
public in general, but will be of particular interest to a wide variety 
of organizations, to include tribal, state, and local emergency 
management agencies, water resource agencies, environmental and fish 
and wildlife management agencies and organizations, floodplain and 
levee safety managers, and non-federal interests (this term should be 
understood to include ``non-federal sponsors'' as used in 33 U.S.C. 
701n and as defined at 33 CFR 203.15) with flood control works and 
hurricane or shore protection projects.
    B. What Should I Consider As I Prepare My Comments for Submission? 
Commenters not familiar with current policy should review the 
references cited above available on the Federal eRulemaking Portal at 
http://www.regulations.gov. Comments should reference a specific 
paragraph or subparagraph of 33 CFR part 203 or one of the questions or 
issues in Section IV below. If the subject of the comment is not 
addressed in either the current CFR or the questions and issues below, 
then the commenter should clearly state the issue or concern, provide 
or reference any supporting documentation (e.g., reports, statistical 
data, and studies), and make a proposal or recommendation about how to 
improve the current policy.
    C. What Is the Intent of USACE in this Rulemaking Effort? The 
intent of USACE is to revise and update 33 CFR part 203 so that it 
incorporates new information from recent storm events and better aligns 
with the current strategy of the USACE National Flood Risk Management 
Program and Levee Safety Program, while following these guiding 
principles:
    1. Effective risk management and levee safety includes working with 
non-federal sponsors and stakeholders to assess, communicate, and 
manage life-safety risks.
    2. Federal assistance under authority of Pub. L. 84-99 supplements 
tribal, state, and local efforts, and does not replace them.
    3. Non-federal sponsors have primary responsibility for operations 
and maintenance (O&M) of flood control works and risk communication 
activities associated with their projects.
    4. USACE will promote the use of a risk-informed decision making 
process to guide non-federal sponsors O&M activities and inspection 
activities for flood control projects.
    5. USACE will encourage a collaborative approach to address complex 
natural resources issues, tribal treaty rights, and complex systemic 
deficiencies.
    6. USACE will work to develop policies and procedures that maintain 
the benefits of any federal investment(s).

IV. Questions and Issues To Shape the Revision of 33 CFR Part 203. 
Summary of Intended Policy Changes and Questions on Specific Activities

A. Preparedness

    1. Advance Measures. USACE may undertake emergency measures in 
advance of imminent threats of unusual flooding. The current 
eligibility criteria are listed in 33 CFR 203.72.
    (a) USACE may perform Advance Measures prior to flooding or flood 
fighting activities to protect against loss of life and significant 
damages to urban areas and public facilities due to an imminent threat 
of unusual flooding. Advance Measures assistance may be technical and/
or direct assistance. Technical assistance may include: providing 
personnel to inspect projects to identify problems and solutions and 
requirements for additional flood protection; provide existing 
hydraulic, hydrologic, structural and/or geotechnical analysis; provide 
existing information to local entities for use in evacuation or 
contingency flood fight plans. Typically direct assistance will be 
temporary in nature, using temporary construction standard and methods, 
technically feasible, designed to deal effectively with the specific 
threat, and capable of construction in time to prevent projected 
damages. To be eligible for Advance Measures a public sponsor must 
agree to execute a cooperative agreement (CA), and, at no cost to 
USACE, when the operation is over, remove all temporary advance 
measures constructed by USACE or agree to upgrade the work to standards 
acceptable to USACE. In addition, the public sponsor is responsible for 
providing the traditional lands, easements, rights-of-way, relocations, 
and borrow and dredged or excavated materials disposal areas (LERRDs) 
necessary for the project, at its own expense, in accordance with the 
CA.
    <bullet> Question 1: What (if any) additional types of Advance 
Measures assistance should be considered?
    <bullet> Question 2: What (if any) additional eligibility or 
performance requirements should be considered generally for Advance 
Measures assistance?
    (b) Permanent structures constructed as Advance Measures are 
currently cost shared at 75 percent federal and 25 percent local with 
the LERRDs necessary for the project provided at no cost to the federal 
government. However, flood control works constructed under other USACE 
authorities have a minimum cost share of 65 percent federal and 35 
percent local with credit provided for the LERRDs necessary for the 
project. USACE is considering changing the cost share for permanent 
structures constructed as part of Advance Measures to be consistent 
with other authorities and to encourage non-federal interests to 
develop permanent structures through the standard USACE planning 
process for new projects so that full cost and benefit analyses can be 
conducted and appropriate public comments considered.
    Question 3: Would changing the cost share serve as an effective 
incentive for promotion of the standard USACE planning process? If not, 
what other incentives or requirements for using the standard USACE 
planning process for permanent construction should be considered?

B. Rehabilitation

    1. Eligibility for Rehabilitation Assistance. USACE is considering 
changing the criteria used to determine eligibility for rehabilitation 
assistance (commonly known as Active status under 33 CFR 203.41) for 
flood control projects from a strict, condition-based overall 
inspection rating of the project to a broader set of actions by non-
federal sponsors such as emergency preparedness planning, flood risk 
communication, and implementation of risk-prioritized O&M activities. 
USACE is considering these changes to: 1) promote risk-informed, cost 
effective prioritization of risk management activities; 2) encourage 
community awareness of risks and promote a broad set of flood risk 
management activities to manage risk; 3) encourage dialogue and problem 
solving between USACE and non-federal sponsors, and 4) provide 
flexibility to align flood risk management activities with requirements 
to protect and restore natural resources.
    Question 4: What should USACE evaluate to determine if a non-
federal sponsor is adequately operating and maintaining its flood 
control project? What should be considered adequate operations and 
management for eligibility purposes?
    Question 5: How should USACE evaluate a non-federal sponsor's 
emergency preparedness, notification, evacuation planning and exercise 
plan and activities to determine if they are adequate? What should 
USACE evaluate? What should be considered adequate?

[[Page 8017]]

    Question 6: How should USACE evaluate a non-federal sponsor's risk 
communications plan and activities for informing local officials, 
residents, and business owners about risks associated with the 
potential failure of the flood control project (e.g., a levee breach)?
    Question 7: Are there other criteria that USACE should consider 
using to determine eligibility for rehabilitation assistance that would 
assist and encourage non-federal sponsors and flood-prone communities 
to reduce their risks from flooding?
    2. Improving Collaboration to Address Complicated Natural Resources 
Challenges and System-Wide Repairs. USACE intends to incorporate the 
System Wide Improvement Framework (SWIF) policy into 33 CFR part 203. 
The SWIF allows non-federal sponsors (currently, of levees and 
floodwalls only) to retain eligibility for rehabilitation assistance 
while actively conducting longer-term, system-wide improvement 
activities that are beyond the scope of usual O&M activities. This 
includes activities related to complex, serious or systemic 
deficiencies, addressing complex natural resources challenges such as 
threatened or endangered species, undocumented encroachments, and 
tribal treaty rights, all of which require additional time and 
coordination beyond what is normally allowed under current policy. The 
purpose is to ensure the imperatives of public safety, tribal rights, 
and environmental principles are met while still reducing the risk from 
floods.
    Question 8: What improvements to the existing SWIF policy should be 
made?
    Question 9: Currently, the SWIF policy has only been used for levee 
projects. Should the SWIF concept be applied to other types of flood 
control projects like channels? If so, for what purposes and using what 
criteria?
    Question 10: If the eligibility for rehabilitation assistance moves 
away from a standards-based inspection criteria and moves toward an 
activities-based approach (as is considered in Section B.1 above), what 
role should the SWIF policy play? Under what circumstances would 
development of a SWIF be useful to non-federal sponsors?
    3. Mitigating Impacts to Threatened or Endangered Species and 
Tribal Treaty Rights During Project Rehabilitation. USACE is 
considering allowing additional types of features and approaches that 
can be incorporated into rehabilitation efforts to minimize or address 
impacts to threatened and endangered species and impacts on tribal 
treaty rights. Features currently being considered include planting 
berms, set back levees, and overbuilt sections.
    Question 11: Are there other types of features and approaches that 
USACE should allow during rehabilitation efforts to minimize or address 
impacts on threatened and endangered species and tribal treaty rights 
while still providing the intended benefits of the flood control 
projects and reducing the risk of loss of life and significant economic 
damages?
    4. Early identification of Nonstructural Alternative Projects 
(NSAPs). USACE currently has the authority to undertake a nonstructural 
alternative project in lieu of a structural rehabilitation effort at 
the request of the non-federal sponsor and in accordance with 33 CFR 
Section 203.50. However, 15 years of experience shows that NSAPs can be 
difficult to implement in the immediate aftermath of a flood. 
Challenges to NSAP implementation include difficulties in obtaining 
easements, land transfers, and municipal permits, as well as legal 
limitations of some non-federal sponsors, and a lack of public 
awareness. USACE is considering how to enable non-federal interests to 
identify viable NSAPs prior to a flood event so that the non-federal 
sponsors may be able to effectively implement as viable NSAPS an 
alternative to structural rehabilitation efforts after a flood event.
    Question 12: What advance planning activities could USACE undertake 
with non-federal interests to enable non-federal interests to consider 
NSAPs as viable alternatives to structural rehabilitation efforts if 
the project is damaged in a future flood event?
    Question 13: How can the current NSAP policy be improved?

V. Statutory and Executive Order Reviews

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), USACE 
must determine whether a 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.
    After consideration of Executive Orders 12866, entitled 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993) and 
13563, entitled ``Improving Regulation and Regulatory Review'' (76 FR 
3821, January 21, 2011), this advance notice of proposed rulemaking has 
been determined to be not significant for the purposes of Executive 
Order 12866.
    Because this document does not impose or propose any requirements, 
and instead seeks comments and suggestions for USACE to consider in 
possibly developing a subsequent proposed rule, the various other 
review requirements that apply when an agency imposes requirements do 
not apply to this action. Nevertheless, as part of your comments on 
this ANPR, you may include any comments or information that could help 
the Agency to assess the potential impact of a subsequent regulatory 
action on small entities pursuant to the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.); to consider human health or environmental effects 
on minority or low-income populations pursuant to Executive Order 
12898, entitled ``Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations'' (59 FR 7629, February 
16, 1994); or to consider potential impacts to state and local 
governments or tribal governments. USACE will consider such comments 
during the development of any subsequent rulemaking.

    Dated: February 9, 2015.
Karen Durham-Aguilera,
Director of Contingency Operations/Homeland Security.
[FR Doc. 2015-03033 Filed 2-12-15; 8:45 am]
BILLING CODE 3720-58-P


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