E9-2350. Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to correct 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. In the “Rules and Regulations” section of this Federal Register, we have made these four changes as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule.

DATES:

Any comments must be received by March 6, 2009.

ADDRESSES:

Submit your comments, identified by Docket ID No. [EPA-HQ-OECA-2009-0006], by mail to 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.

FOR FURTHER INFORMATION CONTACT:

Mr. Robert Hargrove; NEPA Compliance Division; Office of Federal Activities (Mailcode 2252A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: [phone]; fax number: (202)-564-0072; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

This preamble is organized according to the following outline:

I. General Information

A. Why Is EPA Publishing a Proposed Rule?

B. Does This Rule Apply to Me?

C. Statutory Authority

D. Background

II. EPA's Action

III. Statutory and Executive Order Reviews

I. General Information

A. Why Is EPA Publishing a Proposed Rule?

EPA is proposing to take action on “Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions.” We have published a direct final rule which includes only four minor corrections to these procedures in the “Rules and Regulations” section of this Federal Register because we view this as a non-controversial action and anticipate no adverse comment.

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 Council on Environmental Quality's (CEQ's) Regulations at 40 CFR parts 1500 through 1508 establish procedures for 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 Action

Following the publication of the final rule, four minor errors were discovered. Through this proposed 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 proposed rule. EPA anticipates no adverse comments to these minor technical changes, and has therefore published this action as a direct final rule in the “Rules and Regulations” section of this Federal Register. Any parties interested in commenting must do so at this time. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this 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 Executive Order 13045 “Protection of Children from Environmental Health and Safety Risks” (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.

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.