E9-2353. Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is issuing a direct final rule to make corrections to its rule entitled “Procedures for Implementing the National Environmental Policy Act and Assessing the Effects Abroad of EPA Actions,” which was published September 19, 2007. Since the final rule became effective on October 19, 2007, EPA has received inquiries about some minor inconsistencies and ambiguities in the final rule. This action involves four minor, technical corrections to the rule to address those issues. The first correction expands the definition of “applicants” to include those who request EPA approvals. The second change clarifies that a categorical exclusion includes vacant land. The third change corrects the text to indicate that the number of extraordinary circumstances is ten. The last change expands Subpart C to apply to EPA approvals as well as permits and assistance grants.

DATES:

This rule is effective on April 6, 2009 without further notice, unless EPA receives adverse comment by March 6, 2009. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2009-0006, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone], Attention: Robert Hargrove.
• Mail: EPA-HQ-OECA-2009-0006, Environmental Protection Agency, EPA Docket Center (EPA/DC), Enforcement and Compliance Docket and Information Center, Mailcode: 2201T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
• Hand Delivery: Public Reading Room, Room B102, Enforcement and Compliance Docket and Information Center, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-2009-0006. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail 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, EPA recommends 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 EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Public Reading Room, Room B102, Enforcement and Compliance Docket and Information Center, EPA West, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the OECA Docket is [phone].

FOR FURTHER INFORMATION CONTACT:

Robert Hargrove, Office of Enforcement and Compliance Assurance, NEPA Compliance Division (MC 2252A), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

This preamble is organized according to the following outline:

I. General Information

A. Why Is EPA Using a Direct Final Rule?

B. Does This Rule Apply to Me?

C. Statutory Authority

D. Background

II. EPA's Final Action

III. Statutory and Executive Order Reviews

I. General Information

A. Why Is EPA Using a Direct Final Rule?

EPA is publishing this rule without a prior proposed rule because we view this as a non-controversial action and anticipate no adverse comment. The four changes that are being made to the rule involve no substantive or procedural changes. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to make these four corrections if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

B. Does This Rule Apply to Me?

Those subject to this rule include EPA employees who must comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347), and certain grant and permit applicants who must submit environmental information documentation to EPA for their proposed projects.

C. Statutory Authority

NEPA establishes the federal government's national policy for protection of the environment. The CEQ Regulations at 40 CFR parts 1500 through 1508 establish procedures implementing this national policy. The CEQ's Regulations (40 CFR 1505.1) require federal agencies to adopt and, as needed, revise their own NEPA implementing procedures to supplement the CEQ Regulations and to ensure their decision-making processes are consistent with NEPA.

D. Background

On September 19, 2007 (72 FR 53652), EPA published a final rule amending its regulations for implementing NEPA and Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” The Agency amended its NEPA implementing procedures by: (1) Consolidating and standardizing the procedural provisions and requirements of the Agency's environmental review process under NEPA; (2) clarifying the general procedures associated with categorical exclusions, consolidating the categories of actions subject to categorical exclusion, amending existing and adding new categorical exclusions, and consolidating and amending existing and adding new extraordinary circumstances; (3) consolidating and amending the listing of actions that generally require an environmental impact statement; (4) clarifying the procedural requirements for consideration of applicable environmental review laws and executive orders; and (5) incorporating other proposed revisions consistent with CEQ Regulations. The final rule supplements and is used in conjunction with the CEQ NEPA Regulations. 40 CFR Part 6 also includes EPA's procedures, “Assessing the Environmental Effects Abroad of EPA Actions,” that implement Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions” (see 46 FR 3364). The final rule included minor, technical amendments to EPA's procedures for implementing the Order.

II. EPA's Final Action

Following the publication of the final rule, four minor errors were discovered. Through this direct final rule, the Agency is correcting these errors. The first correction is a minor expansion of the definition of “applicant,” found at 40 CFR 6.102(b)(2). The revised definition now includes those who request EPA approval in addition to those who request financial assistance or who are applying to EPA for a permit. The next correction involves the categorical exclusion (CE) found at 40 CFR 6.204(a)(2)(vi). That CE allows for the acquisition, transfer, lease, disposition or closure of existing permanent structures, land, equipment, materials, or personal property as long as a number of provisions are met. The CE is being corrected to include vacant land because the acquisition of vacant land meets the required provisions. The third correction is to 40 CFR 6.204(f)(2)(ii), which states that there are 14 extraordinary circumstances. The final rule, however, contains only ten extraordinary circumstances. The last correction is to 40 CFR 6.300(a), which is being expanded to apply to those who are requesting other EPA approvals. Accordingly, EPA is correcting these minor errors through this direct final rule.

We are publishing this rule without prior proposal because the Agency views this as a non-controversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal should adverse comments be filed. This action will be effective April 6, 2009, without further notice unless the EPA receives relevant adverse comments by March 6, 2009.

If we receive adverse comments, we will publish a document withdrawing this final rule and informing the public that it will not take effect. In that case, all public comments received will be addressed in a subsequent final rule based on the proposed rule that is being published in today's Federal Register. We will not institute a second comment period. Parties interested in commenting should do so at this time. If no adverse comments are received, the public is advised that this rule will be effective on April 6, 2009 and no further action will be taken on the proposed rule.

III. Statutory and Executive Order Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely makes technical corrections to a recently-finalized rule, and does not impose any additional requirements. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. Because this rule does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule. This action merely makes technical corrections to a recently-finalized rule and does not alter the relationship or the distribution of power and responsibilities.

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 97249, November 9, 2000). Thus, Executive Order 13175 does not apply to this action. EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action merely makes technical corrections to a recently-finalized rule, and these corrections have no effect on minority or low-income populations.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined. 5 U.S.C. 804(2). This rule will be effective April 6, 2009.

List of Subjects in 40 CFR Part 6

• Environmental protection
• Environmental assessments
• Environmental impact statements
• Environmental protection reporting
• Foreign relations
• Grant programs—environmental protection
• Reporting and recordkeeping requirements

Dated: January 15, 2009.

Stephen L. Johnson,

Administrator.

Therefore, for the reasons set forth in the preamble, EPA hereby amends title 40, chapter I of the Code of Federal Regulations as follows:

PART 6—[AMENDED]

1. The authority citation for Part 6 continues to read as follows:

Authority: 42 U.S.C. 4321 et seq.; 7401-7671q unless otherwise noted.

2. Section 6.102(b)(2) is revised to read as follows:

§ 6.102

Definitions.

* * * * *

(b) * * *

(2) Applicant means any individual, agency, or other entity that has:

(i) Filed an application for federal assistance;

(ii) Applied to EPA for a permit; or

(iii) Requested other EPA approval.

* * * * *

3. Section 6.204 is amended by revising paragraphs (a)(2)(vi) and (f)(2)(ii) to read as follows:

§ 6.204

Categorical exclusions and extraordinary circumstances.

* * * * *

(a) * * *

(2) * * *

(vi) Actions involving the acquisition, transfer, lease, disposition, or closure of existing permanent structures, land, equipment, materials or personal property provided that the property: Is either vacant or has been used solely for office functions; has never been used for laboratory purposes by any party; does not require site remediation; and will be used in essentially the same manner such that the type and magnitude of the impacts will not change substantially. This category does not include activities related to construction and/or demolition of structures on the property (see paragraph (a)(1)(i) of this section).

* * * * *

(f) * * *

(2) * * *

(ii) Actions covered by the proposed categorical exclusion generally do not involve extraordinary circumstances as set out in paragraphs (b)(1) through (b)(10) of this section and generally do not require preparation of an EIS; and

* * * * *

4. Section 6.300(a) is revised to read as follows:

§ 6.300

Applicability.

(a) This section applies to actions that involve applications to EPA for permits or assistance agreements, or request other EPA approval.

* * * * *