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The U.S. Army Corps of Engineers (Corps) considers the effects of its actions on historic properties pursuant to section 106 of the National Historic Preservation Act (NHPA). The Corps' Regulatory Program’s regulations for complying with the NHPA are outlined at 33 CFR 325 appendix C. Since these regulations were promulgated in 1990, there have been amendments to the NHPA and revisions to the Advisory Council on Historic Preservation’s (ACHP) regulations at 36 CFR part 800. In response, the Corps issued interim guidance until rulemaking could be completed in order to ensure full compliance with the NHPA and ACHP’s regulations. The Corps proposes to revise its regulations to conform to the ACHP regulations.

Statement of Need:

Appendix C intends to provide the implementing procedures for the Regulatory Program's compliance with section 106 of the National Historic Preservation Act.  Rulemaking is required to ensure the Regulatory Program is compliant with the NHPA and ACHP's implementing regulations at 36 CFR 800 for federal agency compliance with Section 106.  The NHPA and the ACHP regulations have been updated since Appendix C was promulgated. 

Summary of the Legal Basis:

Appendix C was promulgated through an APA rulemaking process intended to provide compliance with section 106 of the NHPA specific to the Regulatory Program. 

Alternatives:

Alternatives considered include retaining appendix C, which in its current state is not compliant with the updates to NHPA or the ACHP implementing regulations for federal agencies.  The current appendix C is also not compliant with the NHPA and Administration policies regarding Tribal Nations. Another alternative is to rescind Appendix C and have the Regulatory Program rely on the ACHP implementing regulations.  This would ensure consistency with the Civil Works program of the Corps and ensure compliance with the statutory and regulation language.  Another alternative is to modify appendix C to update the regulation incorporating changes made since promulgation to the NHPA and ACHP implementing regulations.  The goal would be to ensure compliance with NHPA and the ACHP implementing regulations but the end result would be comparable to the rescission alternative with more resource and workload effort.  It would also result in continued confusion for the public with the differing name from ACHP's regulations and Civil Works implementation.   

Anticipated Costs and Benefits:

As this rulemaking action is implementing procedures for the Corps to ensure compliance with the NHPA, there may be some administrative costs incurred to the Corps for training.  There would be benefits accrued to the public in the form of reduced confusion and assurance of consideration of potential adverse effects to historic properties and items and areas of cultural/religious significance.

Risks:

The proposed action is not anticipated to increase risk to public health, safety, or the environment because it outlines the procedures the Corps will follow for implementing a federal statutory requirement. The Corps will comply with all statutory requirements when reviewing permit applications.