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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.

The Department of the Army completed an outreach strategy and engagement effort through publication of a Federal Register notice in June 2022 to solicit comment on the best approach to modernize Appendix C.  This engagement effort included an open docket for submission of comments, a series of virtual meetings with the public, and a series of virtual meetings with Tribes to solicit early input prior to embarking on a rulemaking action on Appendix C. The input received from these efforts will help inform this action.

Statement of Need:

Appendix C provides 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 revised 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:

The preferred alternative is to remove the Regulatory Program’s implementing regulations (i.e., appendix C) from its permitting regulations and instead follow the ACHP’s NHPA implementing regulations. Other alternatives considered include retaining the current appendix C, which does not reflect the current versions of the NHPA or the ACHP implementing regulations for federal agencies or current Federal policies regarding Tribal Nations. Another alternative is to modify Appendix C by incorporating changes made since 1990 to the NHPA and the ACHP implementing regulations. 

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.