[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Proposed Rules]
[Pages 70927-70929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29633]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
USACE's Plan for Retrospective Review Under E.O. 13563
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Notice of intent and request for comments.
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SUMMARY: The U.S. Army Corps of Engineers (USACE) is seeking public
input on its plan to retrospectively review its Regulations
implementing the USACE Regulatory Program at 33 CFR parts 320-332 and
334. Executive Order 13563, ``Improving Regulation and Regulatory
Review'' (E.O.), issued on January 18, 2011, directs Federal agencies
to review existing significant regulations and identify those that can
be made more effective or less burdensome in achieving regulatory
objectives. The Regulations are essential for implementation of the
Regulatory mission; thus, USACE believes they are a significant rule
warranting review pursuant to E.O. 13563. The E.O. further directs each
agency to periodically review its existing significant regulations to
determine whether any such regulations should be modified, streamlined,
expanded, or repealed so as to make the agency's regulatory program
more effective or less burdensome in achieving the regulatory
objectives. Section 404(e) of the Clean Water Act authorizes USACE to
development general permits, including nationwide permits (NWPs), for
minor activities in waters of the U.S. for a period of five years.
Accordingly, every five years, USACE undergoes a reauthorization
process for the NWP program and includes public notice and provides an
opportunity for public hearing. Comments for the NWP program are
submitted during the reauthorization process. Therefore, USACE is
currently complying with the E.O. 13563 direction to periodically
review its existing significant regulations. Other regulations will be
reviewed on an as-needed basis in accordance with new laws, court
cases, etc.
DATES: Written comments must be submitted on or before January 17,
2012.
ADDRESSES: You may submit comments, identified by docket number COE-
2011-0028, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Email: [email protected] Include the docket number,
COE-2011-0028, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, ATTN: CECW-CO-R (Ms. Amy S.
Klein), 441 G Street NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2011-0028.
All comments received will be included in the public docket without
change and may be made available on-line at http://www.regulations.gov,
including any personal information provided, unless the commenter
indicates that the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI, or otherwise protected, through regulations.gov or
email. The regulations.gov Web site is an anonymous access system,
which means we will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
directly to the Corps without going through regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, we recommend that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If we cannot read your
comment because of technical difficulties and cannot contact you for
clarification, we may not be able to consider your comment. Electronic
comments should avoid the use of any special characters, any form of
encryption, and be free of any defects or viruses.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. All documents in
the docket are listed. Although listed in the index, some information
is not publicly available, such as CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.
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FOR FURTHER INFORMATION CONTACT: Ms. Amy S. Klein, Headquarters, U.S.
Army Corps of Engineers, Operations and Regulatory Community of
Practice, Washington, DC 20314-1000, by phone at (202) 761-4559 or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
Executive Order 13563, ``Improving Regulation and Regulatory
Review'' (E.O.), was issued to improve regulation and regulatory
review, which includes public participation, integration and
innovation, flexible approaches, and science. Agencies shall consider
how best to promote retrospective analysis of rules that may be
outmoded, ineffective, insufficient, or excessively burdensome, and to
modify, streamline, expand or repeal them. In accordance with the E.O.,
the USACE plan is to solicit comments on its Regulations to make the
Regulatory Program more effective and less burdensome.
The USACE Regulatory Program's regulations are found at 33 CFR
parts 320-332 and 334. The current Regulations were published in the
Federal Register on November 13, 1986 (51 FR 41206). These Regulations
describe the fundamental procedures, policies, authorities, and
guidelines of the U.S. Army Corps of Engineer's Regulatory Program.
Since the 1986 Regulations were issued, parts of these regulations have
been modified. The changes that have occurred since 1986 include, but
are not limited to: the Nationwide Permit regulations at 33 CFR part
330 were amended on November 22, 1991 (56 FR 59110); regulations
governing the administrative appeal program at 33 CFR part 331 were
added on March 9, 1999 (64 FR 11708) and March 28, 2000 (65 FR 16486);
regulations addressing compensatory mitigation for losses of aquatic
resources at 33 CFR part 332 were added on April 10, 2008 (73 FR
19594); further revisions to the Clean Water Act regulatory definition
of dredged material at 33 CFR part 323 were made on January 17, 2001
(66 FR 4550); final revisions to the Clean Water Act definitions of
fill materials and discharge of fill material at 33 CFR part 323 were
made on May 9, 2002 (67 FR 31129); revisions to the Clean Water Act
regulatory definition of ``discharge of dredged material'' Final Rule
at 33 CFR part 323 were made on December 30, 2008 (73 FR 79641);
updates regarding structures in fairways and anchorage areas at 33 CFR
part 322 were added on Aug. 29, 1995 (60 FR 44761); a requirement for
an avoidance, minimization and compensation statement in applications
for activities involving discharge of dredged or fill material at 33
CFR part 325 was added on April 10, 2008 (73 FR 19670); amended
Administrative Penalties on June 25, 2004 (69 FR 35518; 33 CFR part
326); the civil monetary penalty inflation adjustment rule at 33 CFR
part 326 was added on June 25, 2004 (69 FR 35515); minor editorial
changes to reflect the change in title of the National Ocean Service
and address at 33 CFR part 325 were made on May 13, 1997 (62 FR 26230).
In accordance with the E.O., the USACE plan is to solicit comments
regarding the questions posed below in the Proposal Section in order to
achieve the goals of the E.O. to make regulations more effective and
less burdensome.
The E.O. further directs each agency to periodically review its
existing significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or repealed to
make the agency's regulatory program more effective or less burdensome
in achieving the regulatory objectives. The USACE is proposing the
existing five-year reauthorization process of the NWPs, general
conditions, and definitions as the periodic review of regulations.
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States. Activities authorized by
NWPs must be similar in nature, cause only minimal adverse
environmental effects when performed separately, and cause only minimal
cumulative adverse effect on the aquatic environment. The NWP program
is designed to provide timely authorizations for the regulated public
while protecting the Nation's aquatic resources. The NWP program allows
the Corps to authorize activities with minimal adverse environmental
impacts on the aquatic environment in a timely manner. The NWP program
also allows the Corps to focus its limited resources on more extensive
evaluation of projects that have the potential for causing
environmentally damaging adverse effects.
Each five-year review of the NWPs allows for revision of the NWPs,
general conditions, and definitions to facilitate clarity for the
regulated public, government personnel, and interested parties, while
ensuring protection of the aquatic environment. Making the text of the
NWPs clearer and easier to understand also facilitates compliance with
these permits, which benefits the aquatic environment.
During the NWP reissuance process, there is a request for public
comments published in the Federal Register, which complies with the
E.O. general principle of allowing for public participation and an open
exchange of ideas. While anyone, at any time, may submit suggestions to
Corps Headquarters for new NWPs or changes to existing NWPs, comments
for the NWP program are normally submitted during the reauthorization
process; the most recent notice requesting comments on the NWP program
occurred in the Federal Register published on February 16, 2011 (76 FR
9174), with the comment period ending on April 18, 2011. Therefore,
USACE is currently complying with the E.O. 13563 direction to
periodically review its existing significant regulations. However,
there may be additional ways in which the NWP reauthorization process
may further comply with E.O. 13563.
The E.O.'s intent is to ensure that regulations are accessible,
consistent, written in plain language and are easy to understand, while
protecting public health, welfare, safety, and our environment while
promoting economic growth, innovation, competitiveness, and job
creation. These goals are what the Regulations improvement and the
periodic reissuance of the NWP program would accomplish.
Proposal
To comply with E.O. 13563, the publication of the Federal Register
notice to solicit comments on how the Regulations should be evaluated
for modification, streamlining, expansion, or repeal is the USACE's
first step to develop a plan that ensures that the agency's regulations
are effective and not burdensome. Furthermore, comments are requested
pursuant to the E.O. directing each agency to periodically review its
existing significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or repealed so
as to make the agency's regulatory program more effective or less
burdensome in achieving the regulatory objectives. The publication of
the Federal Register notice to solicit comments on the existing NWP
Program re-authorization process every five years is part of USACE's
plan to ensure the periodic review of regulations.
Input from a wide variety of constituents is important, and
applicants, affected landowners, the general public, consultants,
tribal, state and local government, and other agencies are likely to
have knowledge about the full effects of the regulations
[[Page 70929]]
on people and the economy, and to offer ideas on how to streamline or
improve them. This request for information will inform the USACE's
decision on whether adjustment to the regulation is necessary and
appropriate, and whether additional guidance, education, or outreach
would better assist the Regulation's users, agencies, and the public to
address critical issues.
The URL for a Web site that includes the Regulations, as well as
all of the Corps Regulatory Program's current regulations and
supporting program data and information is http://www.usace.army.mil/CECW/Pages/reg_materials.aspx. Furthermore, each of the 38 Corps
districts has issued local public notices announcing the publication of
this Federal Register notice and the request for comments. The Corps
will evaluate all comments received to develop its list of review
priorities, and will publish a notice in the Federal Register that
summarizes the comments received and lists the priorities. The Web site
will be updated as proposed revisions and final revisions to its
regulations occur.
Please email your response to the questions below to
[email protected] and be sure to number your responses
in association with each question. These questions are not intended to
be exhaustive, and respondents are encouraged to raise additional
issues or make suggestions unrelated to these questions. Respondents
are also encouraged to share examples and a detailed explanation of how
the suggestion will support the goals of the Regulations review
process. We are seeking public comment for a period of 60 days ending
January 17, 2012, after which it will revise the plan and make it
available to the public.
1. How should the Corps modify its Regulations to ensure that they
are serving their stated purpose efficiently and effectively? Please
provide specific recommendations on edits that could be made and
suggestions on appropriate outreach and timing.
2. How can we reduce burdens and maintain flexibility for
participants in the regulatory process in a way that will promote the
protection of waters of the United States via the improvement of the
Regulations?
3. How can the process set forth in the Regulations better achieve
simplified and efficient outcomes?
4. How can the Regulations be changed to better harmonize with, be
consistent with, and coordinate effectively with, other federal
regulations and environmental review procedures?
5. How can we ensure that information developed to support findings
under the Regulations are guided by objective scientific evidence?
6. Are there better ways to encourage public participation and an
open exchange of views as part of the regulatory review? Please cite
specific areas where improvements could be made and indicate what tools
or mechanisms might be made available to achieve this goal.
7. The NWP program allows for comment and periodic review during
the reauthorization process every five years. How else can the periodic
review of the NWP program be utilized to comply with this E.O.?
8. How else might we modify, clarify, or improve the Regulations to
reduce burdens, promote predictability, and increase efficiency?
Authority
We are proposing to improve the Regulations and comply with the
direction to perform a periodic regulatory review with the existing
reauthorization of the NWP program, which were issued under the
authority of Section 404 of the Clean Water Act (33 U.S.C. 1344),
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et
seq.), and Section 103 of the Marine Protection Research and
Sanctuaries Act of 1972 (33 U.S.C. 1413).
Dated: November 10, 2011.
Approved.
Michael G. Ensch,
Chief, Operations and Regulatory, Directorate of Civil Works.
[FR Doc. 2011-29633 Filed 11-15-11; 8:45 am]
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