[Federal Register Volume 59, Number 228 (Tuesday, November 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29265]
[[Page Unknown]]
[Federal Register: November 29, 1994]
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Part IV
Environmental Protection Agency
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40 CFR Part 35
National Estuary Program; Technical Amendment to Financial Assistance
Requirements; Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 35
[FRL-5114-7]
Technical Amendment to Financial Assistance Requirements for the
National Estuary Program
AGENCY: Environmental Protection Agency.
ACTION: Interim final rule.
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Summary: The Environmental Protection Agency (EPA) is promulgating an
interim final rule which amends the regulations on financial assistance
under the Clean Water Act (CWA) for the National Estuary Program (NEP)
as set forth in 40 CFR part 35. This rule amends internal agency
procedure for providing financial assistance to the NEP. The effect of
these amendments is to delegate from EPA Headquarters to the EPA
Regional Administrators the authority to make assistance awards for
start-up activities in NEP Management Conferences and the authority to
review and comment on annual workplans prepared by Management
Conferences. These amendments recognize that the EPA Regions have
detailed knowledge about the issues in each estuary and that the
Regions have the responsibility for routine management of the NEP.
DATES: This interim final rule becomes effective November 29, 1994.
Written comments on this interim final rule will be accepted until 30
days after November 29, 1994.
ADDRESSES: Send written comments on the interim final rule to Ruth
Chemerys, MC-4504F, Environmental Protection Agency, 401 M Street SW.,
Washington, DC, 20460. Commenters are requested to submit any
references cited in their comments. Commenters who want receipt of
their comments acknowledged should include a self-addressed, stamped
envelope. No facsimiles (faxes) will be accepted.
A copy of the comments submitted will be available for review at
EPA's Oceans and Coastal Protection Division, room 811, 499 South
Capitol Street SW., Washington, DC 20460. For access to the comments or
for further information contact Ruth Chemerys, (202) 260-9038.
FOR FURTHER INFORMATION CONTACT: Ruth Chemerys at (202) 260-9038.
Supplementary Information:
A. Background
1. Description of the National Estuary Program
The National Estuary Program (NEP) was established under Section
320 of the Clean Water Act (CWA), as amended in 1987, to identify
nationally significant estuaries, protect and improve their water
quality, and enhance their living resources. Overall responsibility for
management of the program is given to the U.S. Environmental Protection
Agency (EPA). Estuaries are selected for the NEP based on their
potential to demonstrate innovative approaches for addressing issues of
national concern, as well as the likelihood of achieving environmental
improvements. Each NEP is managed by a collaborative body called the
Management Conference convened by EPA. Management conferences provide a
framework for local officials, technical experts, citizens, and
interest groups to identify major environmental problems in the estuary
and develop Comprehensive Conservation and Management Plans (CCMPs) for
addressing them.
Through estuary Management Conferences, the NEP helps to:
Establish partnerships among federal, state, and local
governments as well as citizens and business leaders within an estuary
watershed;
transfer scientific and management experience and
expertise to program participants;
Promote watershed-wide planning to control pollution and
protect living resources; and
Increase public awareness of pollution problems and ensure
public participation in the development of solutions.
The NEP also encourages Management Conferences to take corrective
and preventive actions as early as possible.
The NEP currently includes 21 estuaries: Casco Bay, Maine;
Massachusetts Bays and Buzzards Bay, Massachusetts; Narragansett Bay,
Rhode Island; Long Island Sound, Connecticut and New York; Peconic Bay,
New York; San Juan Harbor, Puerto Rico; New York-New Jersey Harbor, New
York and New Jersey; Delaware Estuary, New Jersey, Pennsylvania, and
Delaware; Delaware Inland Bays, Delaware; Albemarle-Pamlico Sound,
North Carolina; Indian River Lagoon, Tampa Bay, and Sarasota Bay,
Florida; Barataria-Terrebonne Estuarine Complex, Louisiana; Galveston
Bay and Corpus Christi Bay, Texas; Santa Monica Bay and San Francisco
Bay, California; Tillamook Bay, Oregon; and Puget Sound, Washington.
2. Financial Assistance to Estuary Programs
In 1989, EPA issued regulations as 40 CFR part 35, subpart P which
codify policies and procedures for financial assistance awarded by EPA
to state, interstate, and local agencies and other eligible agencies,
institutions, organizations, and individuals for activities under the
NEP. The regulations describe eligibility requirements and policies
regarding the use of funds awarded under Section 320, including
requirements for matching funds.
40 CFR part 35, subpart P also describes a three-level process
within EPA to assist individual estuary programs with planning and
oversight of their activities and to manage the funds available to the
NEP. The first level of planning is the development of the State/EPA
Conference Agreement, which describes milestones to be achieved over
the term of each management conference. Based on this Agreement, EPA
sets budgetary targets for each Management Conference in each fiscal
year.
The second level of planning is the development of an annual
workplan, which is developed by the Management Conference using the
budgetary targets provided by EPA. The workplan presents progress to
date, indicates major program directions necessary to meet milestones
in the State/EPA conference Agreement, documents projects to be
undertaken in the coming year, and specifies funds to be used to
support the projects. The workplan also documents the way in which 25
percent program match requirements will be met.
The third level of planning is a series of individual assistance
applications, which are reviewed by EPA and the Management Conference
for consistency with annual workplans.
B. Today's Rule
Today's regulation amends the Agency process for providing
financial assistance under the National Estuary Program as described in
40 CFR part 35 subpart P by delegating responsibility for managing the
start-up grants and reviewing annual workplans from Headquarters to the
Regions. These amendments are part of a delegation of responsibility
for management of the NEP from EPA Headquarters to the Regions. These
amendments recognize that the EPA Regions have responsibility for
routine management of the NEP and that several functions presently
conducted by Headquarters are more appropriately carried out by the
Regions.
1. Start-up Activities
NEP Management Conferences must conduct a number of activities
which lead to the signing of the State/EPA conference Agreement. These
``start-up'' activities include establishment of the management
committee structure, establishment of a program office, development of
program goals and priorities, identification of priority problems in
the estuary and development of the State/EPA conference Agreement
itself. Although these start-up activities are the initial steps in the
development of a CCMP, they were not described in the NEP financial
assistance regulations under 40 CFR part 35, Subpart P.
Today's rule amends Sec. 35.9065 of 40 CFR part 35 Subpart P by
providing the Regional Administrator the authority to issue assistance
awards under CWA Section 320(g) for all activities, including start-up
activities, leading to preparation of a CCMP consistent with EPA
guidance. Prior to this amendment, the Regional Administrator's grant
authority was limited to those activities that are consistent with the
State/EPA Conference Agreement and therefore which occur after the
Agreement has been signed. Assistance awards for start-up activities
were issued by the Assistant Administrator for Water. The Regions have
experience in managing NEP financial assistance for other phases of the
NEP and therefore have the necessary expertise to manage start-up
grants as well.
2. Annual Workplans
Section 35.9065 of 40 CFR part 35, subpart P described the
requirements for the contents of the Annual Work Plan. Today's rule
amends Section 35.9065 by requiring that annual workplans prepared by
estuary Management Conferences must be reviewed by the EPA Regional
Administrator before final ratification by the Management Conference.
Prior to this amendment, workplans were reviewed by EPA Headquarters
before ratification by the Management Conference. As participants in
NEP Management Conferences, the Regions are most familiar with the
issues in each NEP and have the necessary knowledge and expertise to
review workplans.
Compliance With Other Laws and Executive Orders
1. Administrative Procedure Act
Notice and Comment. The Administrative Procedure Act (APA) 5 U.S.C.
553 generally requires notice of proposed rulemaking to be published in
the Federal Register with an opportunity for public comment prior to
promulgation of a final rule. Section 553(a)(2) of the APA provides,
however, that the normal notice and comment requirements do not apply
to matters relating to grants. Today's rule amends regulations for
providing grants under the National Estuary Program (NEP) and is
therefore exempt from notice and comment requirements under Section
553(a). Furthermore, Section 553(b)(A) of the APA provides an
independent basis for issuing today's rule without notice and comment.
Under Section 553(b)(A), notice and comment requirements do not apply
to rules of agency organization, procedure, or practice. Today's rule
amends internal agency procedure by delegating responsibility for
reviewing NEP workplans and managing NEP start-up grants from EPA
Headquarters to the Regions. Today's rule is therefore exempt from
notice and comment requirements under Section 553(b)(A).
EPA, however, is seeking comment on the interim final rule to
ensure that the Agency has the full benefit of public comment on any
issues relating to NEP financial assistance. If necessary, EPA will
take final action on the interim final rule by reissuing the interim
final rule as a final rule or amending it as appropriate in light of
comments received.
Immediate Effectiveness. The APA generally requires that
substantive rules be published 30 days prior to their effective date.
Section 553(d) of the APA also provides, however, that the 30 day
comment period does not apply if ``provided by the agency for good
cause found and published with the rule.'' EPA is issuing today's
interim final rule as immediately effective under the provisions of 5
U.S.C. 553(d). As described elsewhere in this notice, today's rule
amends internal agency procedure relating to NEP financial assistance.
EPA believes that as this is a matter relating to internal Agency
procedure there is good cause for issuing today's interim final rule in
immediately effective form.
2. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
3. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record keeping burden on the regulated
community as well as minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record keeping requirements affecting 10 or
more non-Federal respondents be approved by the Office of Management
and Budget. Since today's rule would not establish or modify any
information and record keeping requirements, it is not subject to the
requirements of the Paperwork Reduction Act.
4. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
EPA must prepare a Regulatory Flexibility Analysis for regulations
having a significant impact on a substantial number of small entities.
The RFA recognizes three kinds of small entities and defines them as
follows:
(1) Small governmental jurisdictions--any government of a district
with a population of less than 50,000.
(2) Small business--any business which is independently owned and
operated and not dominant in its field as defined by Small Business
Administration regulations under 3 of the Small Business Act.
(3) Small organization--any not-for-profit enterprise that is
independently owned and operated and not dominant in its field.
As described above in the discussion of Executive Order 12866,
today's interim final rule does not impose economic burdens.
Accordingly, EPA has determined that today's rule would not have a
significant impact on a substantial number of small entities, and that
a Regulatory Flexibility Analysis therefore is unnecessary.
List of Subjects in 40 CFR Part 35
State and local assistance.
Dated: November 17, 1994.
Robert Perciasepe,
Assistant Administrator for Water, Environmental Protection Agency.
For the reasons set out in this preamble, part 35, subpart P of
title 40 of the Code of Federal Regulations is amended as follows:
PART 35--[AMENDED]
Subpart P--Financial Assistance for the National Estuary Program
1. The authority citation for Subpart P continues to read as
follows:
Authority: Sec. 320 of the Clean Water Act, as amended (33
U.S.C. 1330).
2. In Sec. 35.9065, paragraph (b) is removed, and paragraph (c) is
redesignated as paragraph (b) and newly designated paragraph (b)
introductory text is revised to read as follows:
Sec. 35.9065 Limitations.
(a) * * *
(b) Elements of annual workplans. Annual Work Plans to be prepared
by estuary Management Conferences must be reviewed by the Regional
Administrator before final ratification by the Management Conference
and must include the following elements:
* * * * *
[FR Doc. 94-29265 Filed 11-28-94; 8:45 am]
BILLING CODE 6560-50-P
