[Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
[Rules and Regulations]
[Pages 72019-72022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33378]
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EMERGENCY STEEL GUARANTEE LOAN BOARD
13 CFR Part 400
RIN 3004-ZA00
Loan Guarantee Decisions; Availability of Environmental
Information
AGENCY: Emergency Steel Guarantee Loan Board.
ACTION: Interim final rule and request for comments.
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SUMMARY: In accordance with the Council on Environmental Quality's
regulations implementing the National Environmental Policy Act
(``NEPA''), the Emergency Steel Guarantee Loan Board (``Board'') is
adopting NEPA procedures. Environmental data or documentation
concerning the use of the proceeds of any loan guaranteed under this
Program must be provided by the Lender to the Board to assist the Board
in meeting its legal responsibilities under NEPA. The purpose of these
procedures is to ensure that environmental information is available to
the Board as it makes decisions concerning applications for loan
guarantees. In addition, these amendments add language to clarify the
collateral and security interests necessary for each guarantee and
extend the deadline for the submission of applications.
DATES: Effective Date: This rule is effective December 23, 1999.
Comments: Comments may be submitted no later than February 22,
2000.
ADDRESSES: Comments may be submitted to: Jay E. Dittus, Executive
Director, Emergency Steel Guarantee Loan Board, U.S. Department of
Commerce, Washington, DC 20230.
FOR FURTHER INFORMATION CONTACT: Jay E. Dittus, Executive Director,
Emergency Steel Guarantee Loan Board, U.S. Department of Commerce,
Washington, DC 20230, (202) 219-0584.
SUPPLEMENTARY INFORMATION:
Background
In accordance with the Council on Environmental quality's
regulations, 40 CFR Parts 1500 to 1508, implementing the National
Environmental Policy Act (``NEPA''), the Emergency Steel Guarantee Loan
Board is adopting NEPA procedures. The NEPA process is intended to help
public officials make decisions based on an understanding of the
environmental consequences of their actions. The purpose of the Board's
procedures is to ensure that necessary environmental information is
available to the Board as it makes loan guarantee decisions.
Pursuant to the Emergency Steel Guarantee Loan Program, 13 CFR
400.206, each application for a Guarantee under the Program must be
accompanied by information necessary for the Board to meet the
requirements of NEPA. Environmental data or documentation concerning
the use of the proceeds of any loan guaranteed
[[Page 72020]]
under this Program must be provided by the Lender to the Board. Once
this information is received, an environmental assessment of the
proposed project will be completed by the Board. This information will
accompany each applicant's loan guaranteed application during the
Board's review and selection process.
These procedures enumerate the types of actions that will trigger
the Board's NEPA procedures. Any action classified as a ``major Federal
action'' is subject to NEPA review. Typically, a government loan
guarantee involving actions such as any project involving construction
and/or installations; any project involving ground disturbing
activities; and any project supporting renovation, other than
remodeling, are considered major Federal actions. Such actions will
require the preparation of an environmental assessment providing a
description of the existing environment, a description of the future of
the environment without the project, supporting documentation
concerning the project and its environmental affects, an analysis of
viable alternatives throughout the proposed project area, and
mitigation measures designed to alleviate the environmental
consequences of the proposed project. However, the Board has determined
that certain actions, that are otherwise major Federal actions,
normally do not have a significant impact on the quality of the human
environment and are, therefore, categorically excluded from the
environmental impact statement requirements of NEPA. For instance,
guarantees for loans for the working capital needs of the Borrower and
guarantees for the refinancing of outstanding indebtedness of the
Borrower are categorically excluded from the need to prepare an
environmental assessment or an environmental impact statement under
NEPA.
In addition to setting forth the Board's NEPA procedures, these
amendments make one change to the substantive program regulations
contained in subpart C of part 400. As currently written, the Board's
regulations could be interpreted to require a borrower to provide a
security interest in all of its property, even if the value of that
property far exceeds the amount of the loan. These amendments clarify
that the Board requires a first lien on any property purchased,
refinanced, or substantially improved with the proceeds of the
guaranteed loan and a minimum security interest of equal status with
the highest security interest in any other property of the Borrower's
pledged to secure the loan. The borrower would have discretion to
determine which of its other property it would pledge. A key factor in
the Board's decision-making will be the priority of the security
interest in collateral, as well as the quality of the collateral. Thus,
applications giving the government a higher security interest on higher
quality collateral will be evaluated higher in the application review
process than those applications providing a lesser level of security
interest.
Finally, in response to industry concerns over the time frame for
the submission of completed applications, the deadline for the
submission of applications has been extended to January 31, 2000. The
current regulations establish a deadline of December 30, 1999, for the
filing of a complete application with the Board.
Administrative Law Requirements
Executive Order 12866
This interim final rule has been determined not to be a significant
for purposes of Executive Order 12866.
Administrative Procedure Act
This rule is exempt from the requirement to provide prior notice
and an opportunity for public comment pursuant to 5 U.S.C. 553(b)(A),
as it involves a matter relating to Board procedures and practice.
Similarly, because this rule of procedure does not have a substantive
effect on the public, it is not subject to a 30 day delay in effective
date, as normally is required under 5 U.S.C. 553(d). However, the Board
is interested in receiving public comment and is, therefore, issuing
this rule as interim final.
Regulatory Flexibility Act
Because this rule is not subject to a requirement to provide prior
notice and an opportunity for public comment pursuant to 5 U.S.C. 553,
or any other law, the analytical requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.
Congressional Review Act
This rule has been determined to be not major for purposes of the
Congressional Review Act, 5 U.S.C. 801 et seq.
Intergovernmental Review
No intergovernmental consultations with State and local officials
is required because the rule is not subject to the provisions of
Executive Order 12372 or Executive Order 12875.
Unfunded Mandate Reform Act of 1995
This rule contains no Federal mandates, as that term is defined in
the Unfunded Mandates Reform Act, on State, local and tribal
governments or the private sector.
Executive Order 13132
This rule does not contain policies having federalism implications
requiring preparation of a Federalism Assessment.
Executive Order 12630
This rule does not contain policies that have takings implications.
List of Subjects in 13 CFR Part 400
Administrative practice and procedure, Environmental impact
statement, Freedom of Information, Loan Programs--Steel, Reporting and
recordkeeping requirements.
Jay E. Dittus,
Executive Director, Emergency Steel Guarantee Loan Board.
For the reasons set forth in the preamble, the Emergency Steel Loan
Guarantee Board amends 13 CFR part 400 as follows:
PART 400--[AMENDED]
1. The authority citation for part 400 continues to read as
follows:
Authority: Pub. L. 106-51, 113 Stat. 252 (15 U.S.C. 1841 note).
2. Section 400.204(c)(2) is revised to read as follows:
Sec. 400.204 Loan terms.
* * * * *
(c) * * *
(2) Without limiting the Lender's or Borrower's obligations under
paragraph (c) of this section, at a minimum, the loan shall be secured
by:
(i) A fully perfected and enforceable security interest and/or
lien, with first priority over conflicting security interests or other
liens in all property acquired, improved, refinanced, or derived from
the loan funds;
(ii) A fully perfected and enforceable security interest and/or
lien in any other property of the Borrower's pledged to secure the
loan, including accessions, replacements, proceeds, or property given
by a third party as Security for the loan, the priority of which shall
be, at a minimum, equal in status with the existing highest voluntarily
granted or acquired interest or lien;
* * * * *
3. Section 400.205(a) is revised to read as follows:
[[Page 72021]]
Sec. 400.205 Application process.
(a) Application process. An original application and three copies
must be received by the Board no later than 8 p.m. EST, January 31,
2000, in the U.S. Department of Commerce, Washington, DC 20230.
Applications which have been provided to a delivery service on or
before January 30, 2000, with ``delivery guaranteed'' before 8 p.m. on
January 30, 2000, will be accepted for review if the Applicant can
document that the application was provided to the delivery service with
delivery to the address listed in this section guaranteed prior to the
closing date and time. A postmark of January 30, 2000, is not
sufficient to meet this deadline as the application must be received by
the required date and time. Applications will not be accepted via
facsimile machine transmission or electronic mail.
* * * * *
4. Section 400.206 is amended by removing paragraphs (b) and (c),
redesignating paragraph (d) as paragraph (b), adding paragraph (c) and
revising paragraph (a) to read as follows:
Sec. 400.206 Environmental requirements.
(a)(1) In general. Environmental assessments of the Board's actions
will be conducted in accordance with applicable statutes, regulations,
and Executive Orders. Therefore, each application for a Guarantee under
the Program must be accompanied by information necessary for the Board
to meet the requirements of applicable law.
(2) Actions requiring compliance with NEPA. (i) The types of
actions classified as ``major Federal actions'' subject to NEPA
procedures are discussed generally in 40 CFR parts 1500 through 1508.
(ii) With respect to this Program, these actions typically include:
(A) Any project, permanent or temporary, that will involve
construction and/or installations;
(B) Any project, permanent or temporary, that will involve ground
disturbing activities; and
(C) Any project supporting renovation, other than interior
remodeling.
(3) Environmental information required from the Lender. (i)
Environmental data or documentation concerning the use of the proceeds
of any loan guaranteed under this Program must be provided by the
Lender to the Board to assist the Board in meeting its legal
responsibilities. The Lender may obtain this information from the
Borrower. (ii) Such information includes:
(A) Documentation for an environmental threshold review from
qualified data sources, such as a Federal, State or local agency with
expertise and experience in environmental protection, or other sources,
qualified to provide reliable environmental information;
(B) Any previously prepared environmental reports or data relevant
to the loan at issue;
(C) Any environmental review prepared by Federal, State, or local
agencies relevant to the loan at issue;
(D) The information required for the completion of Form XYZ,
``Environmental Assessment and Compliance Findings for Related
Environmental Laws;'' and
(E) Any other information that can be used by the Board to ensure
compliance with environmental laws.
(ii) All information supplied by the Lender is subject to
verification by the Board.
* * * * *
(c) National Environmental Policy Act. (1) Purpose. The purpose of
this paragraph (c) is to adopt procedures for compliance with the
National Environmental Policy Act, 42 U.S.C. 4321 et seq., by the
Board. This paragraph supplements regulations at 40 CFR Chapter V.
(2) Definitions. For purposes of this section, the following
definitions apply: Categorical exclusion means a category of actions
which do not individually or cumulatively have a significant effect on
the human environment and for which neither an environmental assessment
nor an environmental impact statement is required.
Environmental assessment means a document that briefly discusses
the environmental consequences of a proposed action and alternatives
prepared for the purposes set forth in 40 CFR 1508.9.
EIS means an environmental impact statement prepared pursuant to
section 102(2)(C) of NEPA.
FONSI means a finding of no significant impact on the quality of
the human environment after the completion of an environmental
assessment.
NEPA means the National Environmental Policy Act, 42 U.S.C. 4321,
et seq.
Working capital loan means money used by an ongoing business
concern to fund its existing operations.
(3) Delegations to Executive Director. (i) All incoming
correspondence from Council on Environmental Quality (CEQ) and other
agencies concerning matters related to NEPA, including draft and final
EIS, shall be brought to the attention of the Executive Director. The
Executive Director will prepare or, at his or her discretion,
coordinate replies to such correspondence.
(ii) With respect to actions of the Board, the Executive Director
will:
(A) Ensure preparation of all necessary environmental assessments
and EISs;
(B) Maintain a list of actions for which environmental assessments
are being prepared;
(C) Revise this list at regular intervals, and send the revisions
to the Environmental Protection Agency;
(D) Make the list available for public inspection;
(E) Maintain a list of EISs; and
(F) Maintain a file of draft and final EISs.
(4) Categorical exclusions. (1) This paragraph describes various
classes of Board actions that normally do not have a significant impact
on the human environment and are categorically excluded. The word
``normally'' is stressed; there may be individual cases in which
specific factors require contrary action.
(ii) Subject to the limitations in paragraph (c)(4)(iii) of this
section, the actions described in this paragraph have been determined
not to have a significant impact on the quality of the human
environment. They are categorically excluded from the need to prepare
an environmental assessment or an EIS under NEPA.
(A) Guarantees of working capital loans; and
(B) Guarantees of loans for the refinancing of outstanding
indebtedness of the Borrower, regardless of the purpose for which the
original indebtedness was incurred.
(iii) Actions listed in paragraph (c)(4)(ii) of this section that
otherwise are categorically excluded from NEPA review are not
necessarily excluded from review if they would be located within, or in
other cases, potentially affect:
(A) A floodplain;
(B) A wetland;
(C) Important farmlands, or prime forestlands or rangelands;
(D) A listed species or critical habitat for an endangered species;
(E) A property that is listed on or may be eligible for listing on
the National Register of Historic Places;
(F) An area within an approved State Coastal Zone Management
Program;
(G) A coastal barrier or a portion of a barrier within the Coastal
Barrier Resources System;
(H) A river or portion of a river included in, or designated for,
potential
[[Page 72022]]
addition to the Wild and Scenic Rivers System;
(I) A sole source aquifer recharge area;
(J) A State water quality standard (including designated and/or
existing beneficial uses and anti-degradation requirements); or
(K) The release or disposal of regulated substances above the
levels set forth in a permit or license issued by an appropriate
regulatory authority.
(5) Responsibilities and procedures for preparation of an
environmental assessment. (i) the Executive Director will request that
the Lender and Borrower provide information concerning all potentially
significant environmental impacts of the Borrower's proposed project
pursuant to 13 CFR 400.206. The Executive Director, consulting at his
discretion with CEQ, will review the information provided by the Lender
and Borrower. Though no specific format for an environmental assessment
is prescribed, it shall be a separate document, suitable for public
review and should include the following in conformance with 40 CFR
1508.9:
(A) Description of the environment. The existing environmental
conditions relevant to the Board's analysis determining the
environmental impacts of the proposed project, should be described. The
no action alternative also should be discussed;
(B) Documentation. Citations to information used to describe the
existing environment and to assess environmental impacts should be
clearly referenced and documented. These sources should include, as
appropriate, but not be limited to, local, tribal, regional, State, and
Federal agencies, as well as, public and private organizations and
institutions;
(C) Evaluating environmental consequences of proposed actions. A
brief discussion should be included of the need for the proposal, of
alternatives as required by 42 U.S.C. 4332(2)(E) and their
environmental impacts. The discussion of the environmental impacts
should include measures to mitigate adverse impacts and any
irreversible or irretrievable commitments of resources to the proposed
project.
(ii) The Executive Director, in preparing an environmental
assessment, may:
(A) Tier upon the information contained in a previous EIS, as
described in 40 CFR 1502.20;
(B) Incorporate by reference reasonably available material, as
described in 40 CFR 1502.21; and/or
(C) Adopt a previously completed EIS reasonably related to the
project for which the proceeds of the loan sought to be guaranteed
under the Program will be used, as describe in 40 CFR 1506.3.
(iii) Because of the statute's admonition to the Board to make its
decisions as soon as possible after receiving applications, the Board
will not:
(A) Publish notice of intent to prepare an environmental
assessment, as describe in 40 CFR 1501.7;
(B) Conduct scoping, as described in 40 CFR 1501.7; and
(C) Seek comments on the environmental assessment, as described in
40 CFR 1503.1.
(iv) If, on the basis of an environmental assessment, it is
determined that an EIS is not required, a FONSI, as described in 40 CFR
1508.13 will be prepared. The FONSI will include the environmental
assessment or a summary of it and be available to the public from the
Board. The Executive Director shall remain a record of these decisions,
making them available to interested parties upon request. Requests
should be directed to the Executive Director, Emergency Steel Guarantee
Loan Program, 14th Street and Constitution Avenue, NW., Washington, DC
20230. Prior to a final loan guarantee decision, a copy of the NEPA
documentation shall be sent to the Board for consideration.
(6) Responsibilities and procedures for preparation of an
environmental impact statement. (i) If after an environmental
assessment has been completed, it is determined that an EIS is
necessary, it and other related documentation will be prepared by the
Executive Director in accordance with section 102(2)(c) of NEPA, this
section, and 40 CFR parts 1500 through 1508. The Executive Director may
seek additional information from the applicant in preparing the EIS.
Once the document is prepared, it shall be submitted to the Board. If
the Board considers a document unsatisfactory, it shall be returned to
the Executive Director for revision or supplementation prior to a loan
guarantee decision; otherwise the Board will transmit the document to
the Environmental Protection Agency.
(ii)(A) The following procedures, as discussed in 40 CFR parts 1500
through 1508, will be followed in preparing an EIS:
(1) The format and contents of the draft and final EIS shall be as
discussed in 40 CFR 1502.
(2) The requirements of 40 CFR 1506.9 for filing of documents with
the Environmental Protection Agency shall be followed.
(3) The Executive Director, consulting at his discretion with CEQ,
shall examine carefully the basis on which supportive studies have been
conducted to assure that such studies are objective and comprehensive
in scope and in depth.
(4) NEPA requires that the decision making ``utilize a systematic,
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences and the environmental design arts.'' 42
U.S.C. 4332(A). If such disciplines are not present on the Board staff,
appropriate use should be made of personnel of Federal, State, and
local agencies, universities, non-profit organizations, or private
industry.
(B) Until the Board issues a record of decision as provided in 40
CFR 1502.2 no action concerning the proposal shall be taken which
would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
(3) 40 CFR 1506.10 places certain limitations on the timing of
Board decisions on taking ``major Federal actions.'' A loan guarantee
shall not be made before the times set forth in 40 CFR 1506.10.
(iii) A public record of decision stating what the decision was;
identifying alternatives that were considered, including the
environmentally preferable one(s); discussing any national
considerations that entered into the decision; and summarizing a
monitoring and enforcement program if applicable for mitigating the
environmental effects of a proposal; will be prepared. This record of
decision will be prepared at the time the decision is made.
[FR Doc. 99-33378 Filed 12-22-99; 8:45 am]
BILLING CODE 1310-FP-M
