99-33379. Loan Guarantee Decision; Availability of Environmental Information  

  • [Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
    [Rules and Regulations]
    [Pages 72022-72026]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-33379]
    
    
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    EMERGENCY OIL AND GAS GUARANTEED LOAN BOARD
    
    13 CFR Part 500
    
    RIN 3003-ZA00
    
    
    Loan Guarantee Decision; Availability of Environmental 
    Information
    
    AGENCY: Emergency Oil and Gas Guaranteed Loan Board.
    
    ACTION: Interim final rule; request for comments.
    
    -----------------------------------------------------------------------
    
    SUMMARY: In accordance with the Council on Environmental Quality's 
    regulations implementing the National Environmental Policy Act 
    (``NEPA''), the Emergency Oil and Gas Guaranteed Loan Board (``Board'') 
    is adopting NEPA procedures. Environmental data or
    
    [[Page 72023]]
    
    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 to setting forth the Board's NEPA 
    procedures, these amendments make three changes. First, language is 
    added to clarify the collateral and security interests necessary for 
    each guarantee. Second, language is added creating a tiered system for 
    the submission of financial statements for Borrowers based on the type 
    of qualified oil and gas company applying and the amount of the loan 
    sought. Third, these amendments 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: Charles E. Hall, Executive 
    Director, Emergency Oil and Gas Guaranteed Loan Board, U.S. Department 
    of Commerce, Washington, DC 20230.
    
    FOR FURTHER INFORMATION CONTACT: Charles E. Hall, Executive Director, 
    Emergency Oil and Gas Guaranteed 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 Oil and Gas 
    Guaranteed 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 Oil and Gas Guaranteed Loan Program, 13 
    CFR 500.206, 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 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 guarantee 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 three changes to the substantive program regulations 
    contained in Subpart C of part 500. First, 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 that 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.
        Second, the Board's current regulations require the submission of 
    three years of independently audited financial statements as part of 
    the application. While public companies are required to have 
    independent audits performed annually, many small private companies do 
    not have such audits performed. Some lenders may not require audited 
    financial statements to determine that a borrower is credit worthy. To 
    address this issue, the Board is amending its regulations to create a 
    tiered system for the submission of financial statements for Borrowers 
    based on the type of qualified oil and gas company applying and the 
    amount of the loan sought. For independent oil and gas companies, a two 
    tiered system is created. For loan proposals under $5 million, the 
    Applicant is required to submit three years for financial statements 
    for the Borrower reviewed by a certified public accountant prepared 
    following generally accepted accounting principles (GAAP). For loan 
    proposals greater than $5 million, the Applicant is required to submit 
    a financial statement for the Borrower of the most recent year audited 
    by an independent certified public accountant and financial statements 
    from the two prior years reviewed by a certified public accountant 
    prepared following GAAP. Service companies, in contrast, will be 
    required to submit consolidated financial statements for the previous 
    three years audited by an independent certified public accountant. 
    Failure to submit full audited statements for the three years 
    historical period may affect the risk assigned to a loan and will be 
    part of the evaluation criteria the Board uses in making their 
    decisions.
        Third, 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 complete application with the Board.
    
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    Administrative Law Requirements
    
    Executive Order 12866
    
        This interim final rule has been determined not to be a significant 
    for purposes of Executive Order 12866.
    
    Administration 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 preparataion of a Federalism Assessment.
    
    Executive Order 12630
    
        This rule does not contain policies that have takings implications.
    
    List of Subjects in 13 CFR Part 500
    
        Administrative practice and procedure, Environmental impact 
    statement, Freedom of Information, Loan Programs--Oil and Gas, 
    Reporting and recordkeeping requirements.
    Charles E. Hall,
    Executive Director, Emergency Oil and Gas Guaranteed Loan Board.
        For the reasons set forth in the preamble, the Emergency Oil and 
    Gas Guaranteed Loan Board amends 13 CFR part 500 as follows:
    
    PART 500--[AMENDED]
    
        1. The authority citation for part 500 continues to read as 
    follows:
    
        Authority: Pub. L. 106-51, 113 Stat. 255 (15 U.S.C. 1841 note).
    
        2. Section 500.204(c)(2) is revised to read as follows:
    
    
    Sec. 500.204  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, or derived from the loan 
    funds; and
        (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 500.205 is amended by revising paragraphs (a) and (b)(8) 
    to read as follows:
    
    
    Sec. 500.205  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.
        (b) * * *
        (8)(i) An independent oil and gas company, as defined in section 
    201(c)(3)(A)(i) of the Act, is required to submit:
        (A) For loans less than $5 million, three years of financial 
    statements reviewed by a certified public accountant following 
    generally accepted accounting principles, as well as any interim 
    financial statements; or
        (B) For loans of $5 million or greater, three years of financial 
    statements must be submitted. The most recent year's statement must be 
    audited by an independent certified public accountant. Statements from 
    the prior two years must be reviewed by a certified public accountant 
    following generally accepted accounting principles. In addition, any 
    interim financial statements and associated notes must be submitted as 
    well.
        (ii) A service company, as defined in section 201(c)(3)(A)(ii) of 
    the Act, is required to submit consolidated financial statements of the 
    Borrower for the previous three years that have been audited by an 
    independent certified public accountant, including any associated 
    notes, as well as any interim financial statements and associated 
    notes.
    * * * * *
        4. Section 500.206 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. 500.206  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
    
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        (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. 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. (i) 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 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 500.206. 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 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. Such references 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
    
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    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 described 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 described 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 maintain a record of these 
    decisions, making them available to interested parties upon request. 
    Requests should be directed to the Executive Director Emergency Oil and 
    Gas 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 their 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 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 make 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. 99-33379 Filed 12-22-99; 8:45 am]
    BILLING CODE 1310-FP-M
    
    
    

Document Information

Published:
12/23/1999
Department:
Emergency Oil and Gas Guaranteed Loan Board
Entry Type:
Rule
Action:
Interim final rule; request for comments.
Document Number:
99-33379
Pages:
72022-72026 (5 pages)
RINs:
3003-ZA00
PDF File:
99-33379.pdf
CFR: (3)
13 CFR 500.204
13 CFR 500.205
13 CFR 500.206