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The U.S. Army Corps of Engineers (USACE) recognizes the sovereign status of Indian tribes (as defined by Executive Order 13175) and our obligation for pre-decisional government-to-government consultation, as established through and confirmed by the U.S. Constitution, treaties, statutes, executive orders, judicial decisions, and Presidential documents and policies, on proposed regulatory actions (e.g., individual permit decisions and general permit verifications). In addition, the USACE must also consider the effects of its actions on historic properties pursuant to section 106 of the National Historic Preservation Act. The USACE 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 subpart B, addressing, among other things, tribal consultation requirements. In response, the USACE issued interim guidance until rulemaking could be completed in order to ensure full compliance with the NHPA and ACHP’s regulations. The USACE seeks to revise its regulations to conform to these requirements. Consequently, the USACE intends to publish an advance notice of proposed rulemaking to solicit the public’s input and inform its drafting of any future rulemaking

Statement of Need:

Since the USACE Regulatory Program’s regulations for section 106 of the National Historic Preservation Act (NHPA) were promulgated in 1990, there have been amendments to the NHPA and revisions to Advisory Council on Historic Preservation’s (ACHP) regulations at 36 CFR part 800 subpart B. The ACHP's regulations address, among other things, tribal consultation requirements. The Corps seeks to revise its regulations to conform to these requirements, and to develop regulations governing consultation with Indian tribes.

Summary of the Legal Basis:

For historic properties: Section 106 of the National Historic Preservation Act. The USACE’s obligations to consult with Indian tribes are derived from the U.S. Constitution, treaties, statutes, executive orders, judicial decisions, and Presidential documents and policies.

Alternatives:

Various alternatives are expected to be developed from the input received from the advance notice of proposed rulemaking, and further explored during the development of the proposed and final rules.

Anticipated Costs and Benefits:

Anticipated costs and benefits will be estimated as rule options are developed after comments received in response to the advance notice of proposed rulemaking are evaluated.

Risks:

The regulation is expected to reduce risks to the environment, specifically historic properties, properties of traditional religious and cultural importance to tribes, and natural resources that are subject to tribal treaty rights.  Other potential risks will likely be identified through the advance notice of proposed rulemaking and those risks will be evaluated during the rulemaking process.