5726 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Rules and Regulations 

inflation. This rule is consistent with 

current agency practice, does not 

impose new substantive requirements, 

and therefore will not have a significant 

adverse effect on the supply, 

distribution, or use of energy. 

List of Subjects in 33 CFR Part 326 

Administrative practice and 

procedure, Intergovernmental relations, 

Investigations, Law enforcement, 

Navigation (water), Water pollution 

control, Waterways. 

Dated: January 22, 2013. 

Approved by: Jo-Ellen Darcy, 

Assistant Secretary of the Army (Civil Works). 

For the reasons set forth in the 

preamble, the Corps amends 33 CFR 

part 326 as follows: 

PART 326—ENFORCEMENT 

■ 1. The authority citation for 33 CFR 

part 326 continues to read as follows: 

Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 

1344; 33 U.S.C. 1413; 33 U.S.C. 2104; 33 

U.S.C. 1319; 28 U.S.C. 2461 note. 

■ 2. Amend § 326.6 by revising 

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

§ 326.6 Class I administrative penalties. 

(a) Introduction. (1) This section sets 

forth procedures for initiation and 

administration of Class I administrative 

penalty orders under Section 309(g) of 

the Clean Water Act, and Section 205 of 

the National Fishing Enhancement Act. 

Under Section 309(g)(2)(A) of the Clean 

Water Act, Class I civil penalties may 

not exceed $11,000 per violation, except 

that the maximum amount of any Class 

I civil penalty shall not exceed $32,500. 

Under Section 205(e) of the National 

Fishing Enhancement Act, penalties for 

violations of permits issued in 

accordance with that Act shall not 

exceed $11,000 for each violation. 

* * * * * 

[FR Doc. 2013–01659 Filed 1–25–13; 8:45 am] 

BILLING CODE 3720–58–P 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 330 

RIN 0710–AA60 

Nationwide Permit Program 

AGENCY: U.S. Army Corps of Engineers, 

DoD. 

ACTION: Final rule. 

SUMMARY: The U.S. Army Corps of 

Engineers is amending its nationwide 

permit regulations so that district 

engineers can issue nationwide permit 

verification letters that expire on the 

same date a nationwide permit expires. 

This amendment will provide regulatory 

flexibility and efficiency, by allowing 

district engineers to issue nationwide 

permit verifications that are valid for the 

same period of time a nationwide 

permit is in effect. We are also 

amending these regulations to reflect the 

45-day pre-construction notification 

review period that has been in effect for 

the nationwide permit ‘‘preconstruction notification’’ general 

condition since June 7, 2000. 

DATES: Effective Date: February 27, 

2013. 

ADDRESSES: U.S. Army Corps of 

Engineers, Attn: CECW–CO, 441 G 

Street NW., Washington, DC 20314– 

1000. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Olson at 202–761–4922 or by 

email at david.b.olson@usace.army.mil, 

or access the U.S. Army Corps of 

Engineers Regulatory Home Page at 

http://www.usace.army.mil/Missions/ 

CivilWorks/ 

RegulatoryProgramandPermits.aspx. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

The U.S. Army Corps of Engineers 

(Corps) issues nationwide permits 

(NWPs) to authorize certain activities 

that require Department of the Army 

permits under Section 404 of the Clean 

Water Act and/or Section 10 of the 

Rivers and Harbors Act of 1899. The 

NWPs authorize activities that have 

minimal individual and cumulative 

adverse environmental effects. The 

NWPs are proposed, issued, modified, 

reissued, and revoked from time to time 

(generally five years), after an 

opportunity for public notice and 

comment. 

Some NWPs require project 

proponents to notify Corps district 

engineers prior to commencing NWP 

activities. These notifications are called 

pre-construction notifications (PCNs), 

and they provide district engineers with 

opportunities to confirm whether or not 

the proposed activities qualify for NWP 

authorization. For most NWPs, the 

district engineer has to respond within 

45 days of receipt of a complete PCN. 

If, after reviewing the PCN, the district 

engineer determines that the proposed 

activity qualifies for NWP authorization, 

the district engineer issues an NWP 

verification letter to the project 

proponent. The NWP verification may 

contain special conditions to ensure that 

the NWP activity results in minimal 

individual and cumulative effects on the 

aquatic environment and the Corps 

public interest review factors. 

This rule has two effects: 

1. Most NWPs, through the 

application of the PCN general 

condition, have a 45-day review period 

for PCNs. The NWP regulations, 

however, dating back to 1991, still 

specify the default PCN review period 

as 30 days. This final rule makes the 

NWP regulation consistent with the 

current NWP PCN general condition, 

which will reduce confusion and ensure 

consistent implementation. 

2. NWPs are reissued every 5 years, 

but NWP verification letters expire 

within two years. This rule will change 

the verification letter expiration date to 

be the same as the expiration date of the 

applicable NWP(s). This will ease the 

regulatory burden on permittees whose 

construction is not completed within 

two years by making it unnecessary to 

reverify the NWP authorization. 

Background 

The last reissuance of the NWPs, 

including the PCN general condition 

(general condition 31), was published in 

the February 21, 2012, issue of the 

Federal Register (77 FR 10184). The 

2012 NWPs expire on March 18, 2017. 

The Corps regulations governing the 

NWP program are provided at 33 CFR 

part 330. The current NWP regulations 

were published in the Federal Register 

on November 22, 1991 (56 FR 59110). 

Section 330.1(e) of the 1991 rule 

provided district engineers with 30 days 

to review notifications to determine 

whether proposed NWP activities result 

in minimal individual and cumulative 

adverse environmental effects and are in 

the public interest. Section 

330.6(a)(3)(ii) of the 1991 regulation 

stated that NWP verification letters can 

be valid for no more than two years. 

Since 1991, there have been substantial 

changes to the NWP program and other 

Federal programs that warrant 

amendments to these provisions. 

In the November 30, 2004, issue of the 

Federal Register (69 FR 69563) we 

published a proposed rule to amend 

these provisions of the NWP 

regulations: 

1. In § 330.1(e)(1) and § 330.4(c)(6) 

and (d)(6), we proposed to change the 

PCN review period from 30 days to 45 

days, to conform with the length of the 

PCN review period that has been in use 

for certain NWPs since 1996. On June 7, 

2000, the 45-day PCN review period was 

applied to all NWPs requiring preconstruction notification (see 65 FR 

12818). The 45-day PCN review period 

is found in the ‘‘pre-construction 


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Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Rules and Regulations 5727 

notification’’ general condition of the 

NWPs (currently general condition 31). 

2. In § 330.6(a)(3)(ii) we proposed to 

change the length of time an NWP 

verification would be valid from two 

years to the expiration date of the NWP. 

Comments and Revisions 

In response to the proposed rule, 15 

comments were received. One 

commenter expressed general support 

for the proposed revisions and two 

commenters said that the proposed rule 

should be withdrawn. 

Two commenters said that the 

proposed rule violates the 

Administrative Procedure Act (APA) 

because the impacts of proposed rule 

are not fully explained. These 

commenters also said that changing the 

PCN review period from 30 days to 45 

days is not consistent with agency 

practice, because the Corps did use APA 

rulemaking procedures to change the 

PCN review period to 45 days. 

We complied with APA requirements 

when we undertook this rulemaking to 

amend the NWP regulations. In the 

preamble to the November 30, 2004, 

notice of proposed rulemaking, we 

provided a concise explanation of the 

basis and purpose of the proposed 

amendments to specific sections of 33 

CFR part 330, and discussed their 

anticipated effects. As discussed in the 

proposed rule, the purpose of amending 

these sections of 33 CFR part 330 is to 

make the NWP regulation consistent 

with those provisions in the general 

condition addressing the timing of PCN 

processing that has been in effect for all 

NWPs since June 7, 2000, and to 

provide regulatory efficiency when 

issuing NWP verification letters. 

We also complied with APA 

requirements when we issued and 

reissued NWPs in 1996, 2000, 2002, 

2007, and 2012, with 45-day PCN 

review periods in the ‘‘pre-construction 

notification’’ general condition. In the 

June, 17, 1996, proposal to reissue 

NWPs (61 FR 30786), we solicited 

comments on increasing the notification 

review period for NWP 26 from 30 days 

to 45 days. In the July 21, 1999, 

proposal to issue five new NWPs and 

modify six existing NWPs to replace 

NWP 26 (64 FR 39341), we requested 

comments on increasing the PCN review 

period to 45 days for all NWPs. In the 

August 9, 2001 (66 FR 42070), 

September 26, 2006 (71 FR 56296), and 

February 16, 2011 (76 FR 9174) 

proposals to issue and reissue NWPs, 

we solicited comments from interested 

parties on a proposed PCN review 

period of 45 days. Comments received 

in response to those proposals were 

fully considered, and the 45-day PCN 

review period was adopted in the final 

NWPs. In the preambles to the Federal 

Register notices announcing the final 

NWPs, we also provided responses to 

comments that were received. 

Therefore, in each of these cases, the 

APA procedures were used to 

promulgate the terms and conditions of 

the NWPs. Today’s final rule concludes 

the rulemaking process for making the 

appropriate sections of 33 CFR part 330 

consistent with the NWPs currently in 

effect, and for changing the length of 

time an NWP verification could be in 

effect. 

Two commenters asserted that the 

proposed rule violates the Regulatory 

Flexibility Act (RFA), because its 

impacts are not fully explained, and the 

Corps did not discuss economic impacts 

or their potential significance. One 

commenter said that the 30-day 

completeness review and 45-day PCN 

review period adopted in the 2000 

NWPs and subsequent NWPs must be in 

the final rule or else the impacts on 

small entities would be substantial. This 

commenter also stated that the final rule 

needs to include the provisions of the 

‘‘construction period’’ general condition 

for the 2002 NWPs for impacts on small 

entities to be insubstantial. 

We have revised our RFA analysis to 

better explain the impacts of the final 

rule on small entities. The RFA analysis 

is provided below in the 

‘‘Administrative Requirements’’ section 

of this preamble. We do not agree that 

it is necessary to incorporate the 30-day 

completeness review into § 330.1(e)(1) 

for this rule to have an insubstantial 

impact on small entities. The 30-day 

completeness review is currently 

addressed through the terms of general 

condition 31 (pre-construction 

notification) of the 2012 NWPs, as 

published in the February 21, 2012, 

issue of the Federal Register. 

For reasons cited in the March 12, 

2007, notice of the reissuance of the 

NWPs, the ‘‘construction period’’ 

general condition that was adopted in 

2002 was not retained in the current 

NWPs (see 72 FR 11171). Removal of 

this general condition will not cause the 

NWPs to result in substantial impacts 

on small entities. Its removal was 

necessary to be consistent with Section 

404(e)(2) of the Clean Water Act. 

Forty-Five Day PCN Review Period 

Several commenters objected to 

increasing the PCN review period in 33 

CFR part 330 from 30 to 45 days. 

Several commenters stated that the 

longer PCN review period is contrary to 

the original intent of NWP program, 

which is to streamline the authorization 

process. Two commenters said that 

increasing the PCN review period would 

delay time sensitive activities, such as 

activities occurring in areas with short 

construction seasons. One commenter 

stated that changes to the ‘‘preconstruction notification’’ general 

condition for the nationwide permits 

does not require conforming changes to 

part 330, since permit conditions can be 

more stringent than regulations. 

Another commenter said that it is 

unnecessary to change the NWP 

regulations, since the timing 

requirements in the ‘‘pre-construction 

notification’’ general condition can 

change whenever the NWPs are 

reissued. Two commenters stated that 

the proposed changes will have 

significant impacts on small entities 

when they are compared to the NWP 

regulations promulgated in 1991. 

Changing the PCN review period in 33 

CFR part 330 from 30 days to 45 days 

will make the NWP regulation 

consistent with the ‘‘pre-construction 

notification’’ general condition for the 

current NWPs. It should also be noted 

that the 2007 and 2012 NWPs were 

promulgated as rules under the 

Administrative Procedures Act. By 

establishing the same time frames in the 

NWPs and their governing regulations, 

this amendment will also help ensure 

consistent interpretation and 

implementation of the NWP terms and 

conditions and the NWP regulations. 

The longer processing times for NWP 

verification requests are not directly due 

to changes to the ‘‘pre-construction 

notification’’ general condition or the 

Corps’ regulations governing the NWP 

program. Longer processing times are a 

result of the increased complexity of the 

regulatory environment that has 

occurred since 1991 as a result of 

judicial decisions and changes in laws 

and regulations. Since the 1991 rule was 

issued, there have been substantial 

changes in Federal laws and regulations 

that have affected the implementation of 

the Corps Regulatory Program, as well 

as changes in agency practices and 

policies such as compensatory 

mitigation requirements and 

jurisdiction. These changes have caused 

increased processing times for NWP 

PCNs, as well as applications for other 

types of DA permits. 

For example, the promulgation of 

regulations in 1997 and 2002 to 

implement the essential fish habitat 

provisions of the Magnuson-Stevens 

Fishery Conservation and Management 

Act has resulted in an additional 

consultation requirement for many 

activities authorized by Corps permits. 

As another example, the Advisory 

Counsel on Historic Preservation issued 

revised regulations in 2000 and 2004 


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5728 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Rules and Regulations 

that govern Section 106 of the National 

Historic Preservation Act, which has 

resulted in changes in processing 

procedures for DA permits under 

interim guidance issued by the Corps on 

April 25, 2005, and January 31, 2007. 

Compensatory mitigation is often 

required to ensure that NWP activities 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. Compensatory 

mitigation proposals can be complex 

documents that require technical review 

to determine whether the proposed 

compensatory mitigation projects are 

feasible and will effectively offset 

authorized losses of aquatic resources. 

Since 1991, there have also been 

changes to the Regulatory Program’s 

compensatory mitigation policies, such 

as the issuance of Regulatory Guidance 

Letter 02–02 on December 24, 2002. 

Although the Corps regulations for 

compensatory mitigation for losses of 

aquatic resources at 33 CFR part 332 

were issued (see 73 FR 19594) after this 

proposed rule was published, the 

requirements for implementing that rule 

still support these changes to the NWP 

regulations. 

Prior to issuing a verification letter for 

an NWP activity, the district engineer 

must review the mitigation statement or 

conceptual or detailed compensatory 

mitigation plan within 45 days of 

receipt of a complete PCN (see 

paragraph (b)(5) of NWP general 

condition 31 (77 FR 10287)). During this 

time period, the district engineer must 

also determine whether the proposed 

NWP activity, in conjunction with any 

proposed compensatory mitigation, will 

result in no more than minimal 

individual and cumulative adverse 

effects on the aquatic environment and 

other public interest factors. The 45-day 

review period provides district 

engineers with time to effectively 

review compensatory mitigation 

statements or proposals submitted with 

PCNs, or to exercise discretionary 

authority if the net adverse effects on 

the aquatic environment are determined 

to be more than minimal. 

Despite these and other changes in the 

regulatory environment, NWP 

verification processing times are still 

substantially less than processing times 

for individual permits (see below). 

Amending the NWP regulations so that 

the PCN review period is the same as 

the PCN review period in the ‘‘preconstruction notification’’ general 

condition will not significantly impact 

small entities, since the 45-day PCN 

review period has been in effect for all 

the NWPs since 2000. 

Two commenters said that the 

proposed changes will significantly 

affect the regulated public because of 

the increase in NWP processing times 

from 16 days in 1998 to 27 days in 2003. 

One commenter said that the Corps 

should discuss alternatives to reduce 

NWP processing times or reduce the 

need for changing the regulation. 

During the period of 1998 to 2003, the 

processing times for all types of DA 

permits have increased, with NWPs 

showing the smallest increase. In fiscal 

year 2010, the average processing time 

for a standard permit application was 

221 days and for NWP pre-construction 

notifications the average processing 

time was 32 days. We do not believe 

that this final rule will change the 

average processing times for NWP 

verification requests, since it reflects 

long-standing NWP PCN processing 

practices as provided in the ‘‘preconstruction notification’’ general 

condition. When one considers the 

changes in processing times that have 

occurred for the various types of DA 

permits, the NWP program still fulfills 

its intent of reducing delays and 

paperwork to authorize activities that 

have minimal adverse effects on the 

aquatic environment. Developing 

alternatives to the NWP program to 

reduce processing times, while 

complying with the requirements of 

applicable laws and regulations, such as 

the Endangered Species Act and the 

National Historic Preservation Act, is 

not feasible. 

Two commenters stated that the 

proposed amendments are unnecessary, 

since the average review period for 

NWP verifications in 2003 was 27 days. 

One commenter disagreed that the 

average processing time for NWP 

verification requests was 27 days in 

2003, and said that the processing times 

are usually longer than 27 days. Two 

commenters remarked that increasing 

the PCN review period from 30 days to 

45 days should not alter processing 

times for NWP PCNs. Several 

commenters stated that the proposed 

amendment would increase processing 

times. 

It is important to understand that the 

27-day average review period cited in 

the proposed rule is the mean 

processing time for NWP PCNs and 

other NWP verification requests. 

Processing times may be longer for 

specific proposed activities, especially 

for NWP activities where consultation 

with other agencies is required to 

comply with other Federal laws, such as 

Section 7 of the Endangered Species Act 

and Section 106 of the National Historic 

Preservation Act. In those situations, the 

NWP authorization may be suspended 

until the required consultation is 

completed, resulting in longer 

processing times. 

Two commenters said that if the 45- 

day PCN review period is adopted in the 

final rule, the Corps should implement 

expedited NWP processing procedures 

to offset the delays that they believe will 

result from that change. 

As discussed above, we do not believe 

that this amendment to the NWP 

regulations will alter NWP PCN 

processing times. The NWPs still 

provide a streamlined form of 

authorization for certain activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

Two commenters said that increasing 

the PCN review period to 45 days will 

change implementation of paragraph (a) 

of the ‘‘pre-construction notification’’ 

general condition for the NWPs. 

Paragraph (a) requires the district 

engineer to determine if a PCN is 

complete within 30 days of the date of 

receipt of the PCN, and if additional 

information is necessary to make the 

PCN complete, to request the additional 

information within that 30-day period. 

These commenters stated that changing 

the PCN review period in section 

330.1(e)(1) would remove the 15 days 

between the end of the 30-day 

completeness review and the end of the 

45-day PCN review. One commenter 

said that the proposed amendment 

would result in a 45-day completeness 

review for NWP PCNs. 

This amendment does not affect the 

timing provisions of the ‘‘preconstruction notification’’ general 

condition, including the 30-day period 

for making completeness determinations 

for PCNs. In accordance with the 

current ‘‘pre-construction notification’’ 

general condition (general condition 31 

of the 2012 NWPs), district engineers 

are still required to make their 

completeness determinations within 30 

days. The 45-day clock for making a 

decision on a PCN still begins on the 

date a complete PCN is received by the 

district. 

One commenter remarked that the 

proposed rule should have discussed 

potential effects of the amendment on 

program efficiency, specifically the time 

necessary to determine that a PCN is 

complete. This commenter noted that 

the 2001 Energy and Water 

Development Appropriations Act 

requires the Corps to track and report 

this information. 

This amendment will have no effect 

on program efficiency since 45-day PCN 

review period has been part of the NWP 

program since 1996. This rule does not 

affect the reporting required under the 


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Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Rules and Regulations 5729 

2001 Energy and Water Development 

Appropriations Act. 

Several commenters recommended 

that the Corps amend the NWP 

regulations to include the 30-day 

completeness review for PCNs and 

allow the district engineer to make only 

one request for additional information 

to make a PCN complete. 

The 30-day completeness review and 

the general rule regarding requests for 

additional information are adequately 

addressed through general condition 31, 

‘‘pre-construction notification,’’ of the 

2012 NWPs. The 2012 NWPs were 

promulgated as a rule, and we do not 

believe it is necessary to incorporate 

these provisions into 33 CFR part 330. 

One commenter objected to the 

proposed amendment, and stated that 

the Corps should pursue available 

means to streamline consultations 

required by other Federal statutes, such 

as the Essential Fish Habitat (EFH) 

provisions of the Magnuson-Stevens 

Fishery Management and Conservation 

Act cited as an example in the preamble 

to the proposed rule. This commenter 

said that the EFH regulations provide 

mechanisms to reduce administrative 

burdens on Federal agencies through 

programmatic consultations and general 

concurrences, to streamline the 

consultation process for classes of 

similar projects. These mechanisms 

could be used to conduct EFH 

consultations within the PCN review 

period stated in § 330.1(e)(1). 

We understand that the EFH 

regulations provide mechanisms to 

streamline the consultation process and 

comply with the requirements of the 

EFH provisions of the MagnusonStevens Fishery Management and 

Conservation Act. However, the use of 

those streamlining mechanisms is more 

appropriately addressed at the regional 

level, between Corps district offices and 

NMFS regional offices. In addition, 

those streamlining mechanisms may not 

be available for all NWP activities 

conducted across the country, so we 

believe that a regulation change is an 

appropriate course of action for 

accommodating the consultation 

requirements of the EFH provisions, as 

well as other revised consultation 

requirements, such as those 

promulgated for the purposes of Section 

106 of the National Historic 

Preservation Act. Amending the NWP 

regulations also provides greater clarity 

and predictability for the public, by 

reducing the number of instances where 

it is necessary to revoke or suspend 

NWP authorizations in cases where 

consultation with other agencies is 

necessary to comply with applicable 

laws. 

In the preamble to the November 30, 

2004, proposed rule, we discussed the 

EFH regulations as an example of 

additional consultation and 

coordination requirements that have 

been imposed since the NWP 

regulations were last amended in 1991. 

The EFH regulations are simply one 

example. Another example is Section 

106 of the National Historic 

Preservation Act, for which new 

implementing regulations were 

promulgated in 2000 and further revised 

in 2004. Under the Corps Regulatory 

Program’s April 25, 2005, and January 

31, 2007, interim guidance, there is a 

30-day review period for most 

determinations concerning effects to 

historic properties. In light of these 

examples and other requirements, we 

believe that amending the NWP 

regulations to be consistent with the 45- 

day pre-construction notification review 

period in the current NWP general 

condition 27 will help ensure 

compliance with all applicable statutes 

and regulations, while providing timely 

responses to NWP verification requests. 

One commenter asked how the 

proposed rule would affect the process 

for incorporating the conditions of an 

individual Section 401 water quality 

certification that is issued after the 

district engineer completes the review 

of a PCN within the 45 day period. This 

commenter also requested that the final 

rule provide clarification on the process 

for incorporating the conditions of an 

individual water quality certification 

into an NWP authorization. 

The amendment to section 330.4(c)(6) 

does not affect the provisional 

verification process for NWP activities 

that require individual water quality 

certification, or the process for 

incorporating water quality certification 

conditions into an NWP authorization. 

It only changes the PCN review period 

to 45 days to be consistent with the 45 

day review period in the NWP ‘‘preconstruction notification’’ general 

condition. Regulatory Guidance Letter 

92–04 provides guidance on 

incorporating water quality certification 

conditions into NWP authorizations. 

That guidance discusses, from the Corps 

perspective, what constitutes 

unacceptable conditions in water 

quality certifications and Coastal Zone 

Management Act consistency 

concurrences. Regulatory Guidance 

Letter 92–04 is available on the Internet 

at: http://www.usace.army.mil/Portals/ 

2/docs/civilworks/RGLS/rgl92–04.pdf. 

Expiration Dates for Verification Letters 

In the November 30, 2004, proposed 

rule we proposed to amend 

§ 330.6(a)(3)(ii) to allow district 

engineers to issue NWP verifications 

that are valid until the date the NWP 

expires, instead of requiring 

verifications to expire in two years or 

less. An NWP verification provides 

confirmation that a particular activity is 

authorized by NWP. This amendment 

will help promote administrative 

efficiency by eliminating the two year 

limit for NWP verifications, so that it 

will not be necessary for district 

engineers to reverify an NWP 

authorization when the permittee has 

not completed the authorized work 

within two years of the issuance of the 

NWP verification letter. 

Many commenters expressed general 

support for proposed amendment of 

§ 330.6(a)(3)(ii). One commenter noted 

that under the proposed rule, district 

engineers have the discretion to issue 

NWP verifications for any specified time 

period, but generally the verification 

would have the same expiration date as 

the NWP. 

We are adopting the proposed 

amendment in this final rule. District 

engineers may impose expiration dates 

on NWP verifications that occur earlier 

than the expiration date of the 

applicable NWPs, but they should 

document the reasons for shorter 

expiration dates. Shorter verification 

periods may be appropriate in cases 

where the authorized activity needs to 

be done by a specific date because of 

concerns for the aquatic environment or 

other public interest factors. 

One commenter recommended that 

the final rule clarify that an NWP 

verification cannot extend past the 

expiration date of the NWP. This 

commenter said that allowing an NWP 

verification to be valid beyond the 

expiration date of an NWP conflicts 

with 33 CFR 330.6(b), which states that 

an NWP automatically expires if it is not 

modified or reissued within five years of 

its effective date. Two commenters 

stated that the proposed rule limits 

NWP verification periods to the date the 

NWP expires, and that district engineers 

could not issue verifications that are 

valid for a period of time after the NWP 

expires. Those commenters suggested 

that the Corps clarify the amount of 

discretion afforded to district engineers 

when establishing expiration dates for 

case-specific NWP verifications. Three 

commenters asked whether district 

engineers could issue NWP verifications 

that are valid after the expiration date of 

the NWP. 

As discussed above, the final rule 

contains flexibility for district engineers 

to establish expiration dates for NWP 

verifications, but in most cases the 

expiration date for an NWP verification 

letter will be the same as the expiration 


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5730 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Rules and Regulations 

date for the applicable NWP(s). The first 

sentence of § 330.6(a)(3)(ii) states that an 

NWP verification should be valid 

‘‘generally until the expiration date of 

the NWP.’’ The amendment of 

§ 330.6(a)(3)(ii) does not affect 

§ 330.6(b). Section 330.6(b) of the NWP 

regulations provides up to 12 months to 

complete an NWP activity after the 

NWP expires, as long as that activity has 

commenced or is under contract to 

commence by the date the NWP expires. 

If an NWP verification letter is to be 

issued near the expiration date of the 

applicable NWP(s), the district engineer 

may inform the permittee of the 

availability of § 330.6(b) to provide an 

additional 12 months to complete the 

authorized activity. 

One commenter said that the 

proposed amendment conflicts with 33 

CFR 330.6(b), which provides one year 

to complete the work authorized by an 

NWP, as long as the activity is under 

construction, or is under contract to 

commence construction, at the time the 

NWP expires, unless discretionary 

authority has been exercised. This 

commenter stated that although Section 

404(e) of the Clean Water Act limits 

NWPs to five year authorization periods, 

it does not limit the amount of time to 

complete the work once it is authorized 

by NWP. 

This amendment does not conflict 

with 33 CFR 330.6(b). The additional 

year to complete the authorized work in 

reliance on the previous NWP allows 

permittees time to complete activities 

that have begun construction, or are 

under contract to begin construction. 

All Corps permits have specific 

construction periods, and if the project 

proponent cannot complete 

construction within those time periods, 

he or she must either obtain a time 

extension or a new individual permit or 

general permit authorization. Since the 

NWPs cannot be issued for a period of 

more than five years, the Corps cannot 

grant time extensions for those NWP 

activities beyond the 12 months 

provided in § 330.6(b). If the previous 

NWP authorization expires and 

§ 330.6(b) does not apply, the Corps will 

evaluate the proposed activity and 

determine if it qualifies for 

authorization under any of the new, 

modified, or reissued NWPs. If the 

proposed activity does not qualify for 

any of the new, modified, or reissued 

NWPs, then the project proponent needs 

to obtain an individual permit or a 

regional general permit authorization. 

Several commenters said that the final 

rule should include a ‘‘reasonable 

construction period’’ to allow a 

permittee sufficient time to complete an 

NWP activity without obtaining a new 

NWP verification. These commenters 

referred to the ‘‘construction period’’ 

general condition of the 2002 NWPs, 

which were published in the January 15, 

2002, issue of the Federal Register (67 

FR 2020). One commenter expressed 

support for the proposed amendment to 

this section, as long as the ‘‘construction 

period’’ general condition is not 

changed. Two commenters asserted that 

clarification is needed in the final rule, 

so that there is no conflict with 

‘‘construction period’’ general 

condition. Two commenters stated that 

the proposed rule would make the 

‘‘construction period’’ general condition 

invalid. One commenter expressed 

concern that the proposed amendment 

would reduce the amount of time an 

NWP verification would be valid, 

especially in cases where the expiration 

date of the NWP is less than two years 

from the date of the verification letter. 

This commenter said that a permittee 

needs a reasonable amount of time to 

complete the authorized work, and 

suggested using the ‘‘construction 

period’’ general condition to address 

this concern. 

As discussed in the March 12, 2007, 

Federal Register notice (72 FR 11171– 

11172), we have removed the 

‘‘construction period’’ general condition 

from the NWPs. That general condition 

was removed because it is contrary to 

Section 404(e)(2) of the Clean Water 

Act, which imposes a five year limit on 

general permits. In light of the statutory 

time limit placed on general permits, 

NWP activities with long construction 

periods can be addressed in two ways. 

Once an NWP expires, the permittee 

can utilize 33 CFR 330.6(b) to complete 

the work. That regulation allows 

permittees to continue work for 12 

months in reliance on an NWP 

authorization, if that NWP has expired 

or been modified or revoked, and the 

activity is under construction or under 

contract to commence construction. If 

that NWP activity cannot be completed 

within that 12 month time period, then 

the permittee would have to obtain 

another DA authorization, which may 

be provided by a reissued or new NWP. 

We believe that 33 CFR 330.6(b) is 

sufficient to address concerns with 

projects that may not be completed 

before an NWP expires. For NWP 

activities that require substantial 

amounts of time to complete, project 

proponents should consider whether it 

would be more advantageous to pursue 

an individual permit authorization. 

Individual permits can have greater 

flexibility in construction periods. An 

individual permit authorization can also 

be extended, as long as the district 

engineer determines that the time 

extension would be consistent with 

applicable regulations and would not be 

contrary to the public interest. 

This change to the NWP regulations 

does not reduce the amount of time an 

NWP verification would be valid. In 

cases where a reissued NWP can be 

used to authorize the previously verified 

NWP activity, the Corps could issue a 

new verification letter that would be 

valid until that NWP expires. For those 

activities that do not qualify for the 

reissued NWP, the grandfather 

provision at 33 CFR 330.6(b) could 

continue to provide the NWP 

authorization for up to an additional 12 

months for eligible activities, unless the 

district engineer exercises discretionary 

authority to modify, suspend, or revoke 

the NWP authorization. Having the 

NWP verification letter expire at the 

same time as the NWP itself expires will 

promote compliance and help protect 

the aquatic environment by requiring 

district engineers to consider whether 

the proposed activity still qualifies for 

NWP authorization under the terms and 

conditions of a reissued or new NWP. 

The reissued or new NWP may have 

changed substantially during the NWP 

reissuance process that the Corps 

conducts every five years, to protect the 

aquatic environment or other public 

interest review factors. 

One commenter suggested linking the 

expiration date of the NWP verification 

to the expiration date(s) of any other 

required Federal authorizations to 

reduce duplication with other Federal 

programs. This commenter also said that 

re-verification of NWP activities should 

not be required if they are long-term 

activities that are subject to 

comprehensive regulation through 

another Federal environmental statute. 

We do not believe it would be 

appropriate to link the expiration date 

of NWP verifications with other Federal 

authorizations. Other Federal 

environmental statutes often do not 

have exactly the same requirements as 

the statutes administered by the Corps. 

Therefore, there is often a need for the 

Corps to do an independent review or 

determination to ensure compliance 

with the laws that apply to the Corps 

regulatory program. Actions or 

outcomes required by other Federal 

environmental statutes often differ from 

Corps requirements. In addition, Section 

404(e) of the Clean Water Act limits the 

issuance of general permits, including 

NWPs, to a maximum of five years. 

One commenter requested 

clarification on how the proposed 

amendment of § 330.6(a)(3)(ii) would 

affect situations where the NWP is 

revoked, modified, or expired during 


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the time period specified in the 

verification letter. 

If an NWP is revoked, suspended, or 

modified by the Chief of Engineers 

before the NWP verification letter 

expires, 33 CFR 330.6(b) applies. In 

other words, the project proponent 

would have 12 months to complete the 

authorized work, as long as he or she 

has commenced construction, or is 

under contract to commence 

construction, before the NWP was 

revoked, suspended, or modified and 

the district engineer has not exercised 

discretionary authority to modify, 

suspend, or revoke the NWP 

authorization. 

Administrative Requirements 

Plain Language 

In compliance with the principles in 

the President’s Memorandum of June 1, 

1998, (63 FR 31855) regarding plain 

language, this preamble is written using 

plain language. The use of ‘‘we’’ in this 

notice refers to the Corps. We have also 

used the active voice, short sentences, 

and common everyday terms except for 

necessary technical terms. 

Paperwork Reduction Act 

This action will not impose any new 

information collection burden under the 

provisions of the Paperwork Production 

Act (44 U.S.C. 3501 et seq.). For NWPs 

that require PCNs, the modification 

changes the 30-day review period to a 

45-day review period. In addition, the 

final rule changes the length of time an 

NWP verification letter could be valid. 

Since the final rule does not involve any 

additional collection of information 

from the public, this action is not 

subject to the Paperwork Reduction Act. 

Executive Order 12866 and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Corps must 

determine whether the regulatory action 

is ‘‘significant’’ and therefore subject to 

review by OMB and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in these Executive Orders. 

Pursuant to the terms of Executive 

Order 12866, we have determined that 

the final rule is not a ‘‘significant 

regulatory action’’ because it does not 

meet any of these four criteria. This rule 

consists of minor modifications of 

existing regulations. For NWPs that 

require PCNs, the final rule increases 

the 30-day review period to 45 days, 

which is consistent with the current 

general conditions for the NWPs. In 

addition, the final rule changes the 

length of time an NWP verification letter 

is generally valid. 

Executive Order 13132 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the Corps to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ The phrase ‘‘policies that 

have Federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ 

The final rule does not have 

Federalism implications. We do not 

believe that amending the regulation to 

increase the NWP PCN review period or 

increase the length of time an NWP 

verification letter may be valid will have 

substantial direct effects on the States, 

on the relationship between the Federal 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This rule does not 

impose new substantive requirements. 

In addition, the changes will not impose 

any additional substantive obligations 

on State or local governments. 

Therefore, Executive Order 13132 does 

not apply to this rule. 

Regulatory Flexibility Act, as Amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

5 U.S.C. 601 et seq. 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, a small 

entity is defined as: (1) A small business 

based on Small Business Administration 

size standards; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; or (3) a small organization 

that is any not-for-profit enterprise 

which is independently owned and 

operated and is not dominant in its 

field. 

Amending the NWP regulations to 

allow district engineers to issue NWP 

verification letters with expiration dates 

that are the same as the expiration date 

of the NWPs will benefit small entities 

who use NWPs. Implementation of this 

change will provide clarity, since the 

expiration date of the verification letter 

will usually match the expiration date 

of the NWP being used to authorize the 

activity. It will also eliminate 

uncertainty regarding whether reverification is necessary in cases where 

the two-year verification letter expired 

before the date the NWP itself expired. 

The revised regulation will provide 

small entities with assurance that the 

NWP authorization is valid until the 

NWP expires. 

Making the PCN review period in the 

NWP regulations consistent with the 

NWP ‘‘pre-construction notification’’ 

general condition will have no effect on 

small entities, since users of the NWPs 

must comply with all applicable terms 

and conditions of the NWPs, including 

the ‘‘pre-construction notification’’ 

general condition, which establishes 

time frames for PCN reviews. 

After considering the economic 

impacts of this rulemaking on small 

entities, I certify that this action will not 

have a significant impact on a 

substantial number of small entities. 

The ability for district engineers to issue 

NWP verification letters that have the 

same expiration date as the NWPs 

themselves will benefit small entities by 

providing clarity and reducing 

paperwork burdens. Amending the 

NWP regulation to have the same PCN 

review period as the NWP ‘‘preconstruction notification’’ general 

condition will also provide clarity and 

regulatory certainty. This final rule is 

consistent with current agency practice, 

does not impose new substantive 

requirements, and therefore would not 


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5732 Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Rules and Regulations 

have a significant economic impact on 

a substantial number of small entities. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under Section 202 of the UMRA, 

the agencies generally must prepare a 

written statement, including a costbenefit analysis, for proposed and final 

rules with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any one year. 

Before promulgating a rule for which a 

written statement is needed, Section 205 

of the UMRA generally requires the 

agencies to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows an agency 

to adopt an alternative other than the 

least costly, most cost-effective, or least 

burdensome alternative if the agency 

publishes with the final rule an 

explanation why that alternative was 

not adopted. Before an agency 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including Tribal 

governments, it must have developed, 

under Section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of regulatory proposals 

with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

We have determined that the final 

rule does not contain a Federal mandate 

that may result in expenditures of $100 

million or more for State, local, and 

Tribal governments, in the aggregate, or 

the private sector in any one year. This 

rule is consistent with current agency 

practice, does not impose new 

substantive requirements and therefore 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

Tribal governments, in the aggregate, or 

the private sector in any one year. 

Therefore, the final rule is not subject to 

the requirements of Sections 202 and 

205 of the UMRA. For the same reasons, 

we have determined that this rule 

contains no regulatory requirements that 

might significantly affect small 

governments. Therefore, it 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 this rule on 

children, and explain why the 

regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives. 

The final rule is not subject to this 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866. In addition, it 

does not concern an environmental or 

safety risk that we have reason to 

believe may have a disproportionate 

effect on children. 

Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ The phrase 

‘‘policies that have tribal implications’’ 

is defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal government and 

the Indian tribes, or on the distribution 

of power and responsibilities between 

the Federal government and Indian 

tribes.’’ 

This rule does not have tribal 

implications. It will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes. It is 

generally consistent with current agency 

practice and does not impose new 

substantive requirements. Therefore, 

Executive Order 13175 does not apply 

to this rule. 

Environmental Documentation 

The Corps prepares appropriate 

environmental documentation, 

including Environmental Impact 

Statements when required, for all permit 

decisions. Therefore, environmental 

documentation under the National 

Environmental Policy Act is not 

required for this rule. Appropriate 

environmental documentation, which 

includes an environmental assessment, 

is prepared for each NWP when it is 

issued, reissued, or modified. 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. We will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Executive Order 12898 

Executive Order 12898 requires that, 

to the greatest extent practicable and 

permitted by law, each Federal agency 

must make achieving environmental 

justice part of its mission. Executive 

Order 12898 provides that each Federal 

agency conduct its programs, policies, 

and activities that substantially affect 

human health or the environment in a 

manner that ensures that such programs, 

policies, and activities do not have the 

effect of excluding persons (including 

populations) from participation in, 

denying persons (including 

populations) the benefits of, or 

subjecting persons (including 

populations) to discrimination under 

such programs, policies, and activities 

because of their race, color, or national 

origin. 

The final rule is not expected to 

negatively impact any community, and 

therefore is not expected to cause any 

disproportionately high and adverse 

impacts to minority or low-income 

communities. 

Executive Order 13211 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 


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22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

The final rule updates regulations for 

implementing the Nationwide Permit 

Program. The rule is consistent with 

current agency practice, does not 

impose new substantive requirements 

and therefore will not have a significant 

adverse effect on the supply, 

distribution, or use of energy. 

List of Subjects in 33 CFR Part 330 

Administrative practice and 

procedure, Intergovernmental relations, 

Navigation (water), Water pollution 

control, Waterways. 

Dated: January 22, 2013. 

Approved by: 

Jo-Ellen Darcy, 

Assistant Secretary of the Army (Civil Works). 

For the reasons stated in the 

preamble, the Corps is amending 33 

CFR part 330 as follows: 

PART 330—NATIONWIDE PERMIT 

PROGRAM 

■ 1. The authority citation for part 330 

continues to read as follows: 

Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 

1344; 33 U.S.C. 1413. 

■ 2. Amend § 330.1 by revising 

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

§ 330.1 Purpose and policy. 

* * * * * 

(e) * * * 

(1) In most cases, permittees may 

proceed with activities authorized by 

NWPs without notifying the DE. 

However, the prospective permittee 

should carefully review the language of 

the NWP to ascertain whether he must 

notify the DE prior to commencing the 

authorized activity. For NWPs requiring 

advance notification, such notification 

must be made in writing as early as 

possible prior to commencing the 

proposed activity. The permittee may 

presume that his project qualifies for the 

NWP unless he is otherwise notified by 

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

day period starts on the date of receipt 

of the notification in the Corps district 

office and ends 45 calendar days later 

regardless of weekends or holidays. If 

the DE notifies the prospective 

permittee that the notification is 

incomplete, a new 45-day period will 

commence upon receipt of the revised 

notification. The prospective permittee 

may not proceed with the proposed 

activity before expiration of the 45-day 

period unless otherwise notified by the 

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

day period, he must use the procedures 

of 33 CFR 330.5 in order to modify, 

suspend, or revoke the NWP 

authorization. 

* * * * * 

■ 3. Amend § 330.4 by revising 

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

follows: 

§ 330.4 Conditions, limitations, and 

restrictions. 

* * * * * 

(c) * * * 

(6) In instances where a state has 

denied the 401 water quality 

certification for discharges under a 

particular NWP, permittees must 

furnish the DE with an individual 401 

water quality certification or a copy of 

the application to the state for such 

certification. For NWPs for which a state 

has denied the 401 water quality 

certification, the DE will determine a 

reasonable period of time after receipt of 

the request for an activity-specific 401 

water quality certification (generally 60 

days), upon the expiration of which the 

DE will presume state waiver of the 

certification for the individual activity 

covered by the NWPs. However, the DE 

and the state may negotiate for 

additional time for the 401 water quality 

certification, but in no event shall the 

period exceed one (1) year (see 33 CFR 

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

individual 401 water quality 

certification, or if the prospective 

permittee demonstrates to the DE state 

waiver of such certification, the 

proposed work can be authorized under 

the NWP. For NWPs requiring a 45-day 

pre-construction notification the district 

engineer will immediately begin, and 

complete, his review prior to the state 

action on the individual section 401 

water quality certification. If a state 

issues a conditioned individual 401 

water quality certification for an 

individual activity, the DE will include 

those conditions as activity-specific 

conditions of the NWP. 

* * * * * 

(d) * * * 

(6) In instances where a state has 

disagreed with the Corps consistency 

determination for activities under a 

particular NWP, permittees must 

furnish the DE with an individual 

consistency concurrence or a copy of 

the consistency certification provided to 

the state for concurrence. If a state fails 

to act on a permittee’s consistency 

certification within six months after 

receipt by the state, concurrence will be 

presumed. Upon receipt of an 

individual consistency concurrence or 

upon presumed consistency, the 

proposed work is authorized if it 

complies with all terms and conditions 

of the NWP. For NWPs requiring a 45- 

day pre-construction notification the DE 

will immediately begin, and may 

complete, his review prior to the state 

action on the individual consistency 

certification. If a state indicates that 

individual conditions are necessary for 

consistency with the state’s Federallyapproved coastal management program 

for that individual activity, the DE will 

include those conditions as activityspecific conditions of the NWP unless 

he determines that such conditions do 

not comply with the provisions of 33 

CFR 325.4. In the latter case the DE will 

consider the conditioned concurrence as 

a non-concurrence unless the permittee 

chooses to comply voluntarily with all 

the conditions in the conditioned 

concurrence. 

* * * * * 

■ 4. Amend § 330.6 by revising 

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

§ 330.6 Authorization by nationwide 

permit. 

(a) * * * 

(3) * * * 

(ii) The DE’s response will state that 

the verification is valid for a specific 

period of time (generally until the 

expiration date of the NWP) unless the 

NWP authorization is modified, 

suspended, or revoked. The response 

should also include a statement that the 

verification will remain valid for the 

specified period of time, if during that 

time period, the NWP authorization is 

reissued without modification or the 

activity complies with any subsequent 

modification of the NWP authorization. 

Furthermore, the response should 

include a statement that the provisions 

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

period of time, the NWP authorization 

expires, or is suspended or revoked, or 

is modified, such that the activity would 

no longer comply with the terms and 

conditions of an NWP. Finally, the 

response should include any known 

expiration date that would occur during 

the specified period of time. A period of 

time less than the amount of time 

remaining until the expiration date of 

the NWP may be used if deemed 

appropriate. 

* * * * * 

[FR Doc. 2013–01655 Filed 1–25–13; 8:45 am] 

BILLING CODE 3720–58–P 


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