Procedures for Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions, 5991-5994 [E9-2353]

Download as PDF Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have concluded under that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. Therefore, this rule is categorically excluded, under section 2.B.2. Figure 2–1, paragraph (34)(g), of the Instruction and neither an environmental assessment nor an environmental impact statement is required. This rule involves the establishing, disestablishing, or changing Regulated Navigation Areas, and security or safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES. § 165.1323 Regulated Navigation Area: Willamette River Portland, Oregon Captain of the Port Zone. (a) Location. The following is a regulated navigation area (RNA): All waters of the Willamette River encompassed by a line commencing at 45°34′.33″ N, 122°44′17″ W to 45°34′32″ N, 122°44′18″ W thence to 45°34′35″ N, 122°44′24″ W thence to 45°34′35″ N, 122°44′27″ W thence to 45°34′35″ N, 122°44′36″ W thence to 45°34′35″ N, 122°44′37″ W thence to 45°34′38″ N, 122°44′42″ W to 45°34′39″ N, 122°44′43″ W thence to 45°34′44″ N, 122°44′51″ W thence to 45°34′45″ N, 122°44′53″ W thence to 45°34′47’’ N, 122°44′51″ W thence to 45°34′45″ N, 122°44′46″ W to 45°34′45″ N, 122°44′45″ W thence to 45°34′47″ N, 122°44′43″ W thence to 45°34′46″ N, 122°44′42″ W thence to 45°34′48″ N, 122°44′40’’ W thence to 45°34′48″ N, 122°44′38″ W and along the shoreline to 45°34′46″ N, 122°44′39″ W and back to the point of origin. All coordinates reference 1983 North American Datum (NAD 83). (b) Regulations. (1) Anchoring, spudding, dredging, laying cable, dragging, trawling, conducting salvage operations, operating commercial vessels of any size, and operating recreational vessels greater than 30 feet in length are prohibited in the regulated area. (2) All vessels transiting or accessing the regulated area shall do so at no wake speed or at the minimum speed necessary to maintain steerage. Dated: December 2, 2008. J.P. Currier, Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District. [FR Doc. E9–2308 Filed 2–3–09; 8:45 am] BILLING CODE 4910–15–P List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. ENVIRONMENTAL PROTECTION AGENCY For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: [EPA–HQ–OECA–2009–0006; FRL–8766–2] 40 CFR Part 6 ■ RIN 2020–AA48 PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. ■ 2. Add § 165.1323 to read as follows: VerDate Nov<24>2008 16:03 Feb 03, 2009 Jkt 217001 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 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 5991 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: • https://www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: Hargrove.robert@epa.gov. • Fax: 202–564–0072, 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 https:// 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 https:// E:\FR\FM\04FER1.SGM 04FER1 5992 Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations www.regulations.gov or e-mail. The https://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 https:// 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 https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket are listed in the https:// 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 https:// 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 (202) 566–1744, and the telephone number for the OECA Docket is (202) 566–1752. 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: (202) 564–7157; fax number: (202) 564–0072; e-mail address: Hargrove.robert@epa.gov. SUPPLEMENTARY INFORMATION: This preamble is organized according to the following outline: I. General Information A. Why Is EPA Using a Direct Final Rule? VerDate Nov<24>2008 16:03 Feb 03, 2009 Jkt 217001 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) PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 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 E:\FR\FM\04FER1.SGM 04FER1 Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations 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 VerDate Nov<24>2008 16:03 Feb 03, 2009 Jkt 217001 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 recentlyfinalized rule, and these corrections have no effect on minority or lowincome 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 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 5993 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 E:\FR\FM\04FER1.SGM 04FER1 5994 Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Rules and Regulations 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. * * * * * [FR Doc. E9–2353 Filed 2–3–09; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA–R06–RCRA–2008–0754; FRL–8767–9] Oklahoma: Final Authorization of State Hazardous Waste Management Program Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. SUMMARY: Oklahoma has applied to the EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is authorizing the State’s changes through this immediate final action. The EPA is publishing this rule to authorize the changes without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we receive written comments which oppose this authorization during the comment period, the decision to authorize Oklahoma’s changes to its hazardous waste program will take effect. If we receive comments that oppose this action, we will publish a document in the Federal Register withdrawing this rule before it takes effect, and a separate document in the proposed rules section of this Federal Register will serve as a proposal to authorize the changes. DATES: This final authorization will become effective on April 6, 2009 unless VerDate Nov<24>2008 16:03 Feb 03, 2009 Jkt 217001 the EPA receives adverse written comment by March 6, 2009. If the EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this authorization will not take effect. ADDRESSES: Submit your comments by one of the following methods: 1. Federal eRulemaking Portal: https:// www.regulations.gov. Follow the on-line instructions for submitting comments. 2. E-mail: patterson.alima@epa.gov. 3. Mail: Alima Patterson, Region 6, Regional Authorization Coordinator, State/Tribal Oversight Section (6PD–O), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733. 4. Hand Delivery or Courier. Deliver your comments to Alima Patterson, Region 6, Regional Authorization Coordinator, State/Tribal Oversight Section (6PD–O), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202– 2733. Instructions: Do not submit information that you consider to be CBI or otherwise protected through regulations.gov, or e-mail. The Federal regulations.gov Web site is an ‘‘anonymous access’’ system, which means the 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 the EPA without going through regulations.gov, your email 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, the 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 the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the 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. You can view and copy Oklahoma’s application and associated publicly available materials from 8:30 a.m. to 4 p.m. Monday through Friday at the following locations: Oklahoma Department of Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma 73101–1677, (405) 702–7180 and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, phone number (214) 665–8533. Interested persons wanting to examine these PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 documents should make an appointment with the office at least two weeks in advance. FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6 Regional Authorization Coordinator, State/Tribal Oversight Section (6PD–O), Multimedia Planning and Permitting Division, (214– 665–8533), EPA Region 1145 Ross Avenue, Dallas, Texas 75202–2733, and e-mail address patterson.alima@epa.gov. SUPPLEMENTARY INFORMATION: A. Why Are Revisions to State Programs Necessary? States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA’s regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279. B. What Decisions Have We Made in This Rule? We conclude that Oklahoma’s application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Oklahoma Final authorization to operate its hazardous waste program with the changes described in the authorization application. Oklahoma has responsibility for permitting treatment, storage, and disposal facilities within its borders and also section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (‘‘SAFETEA’’), Public Law 109–59, 119 Statute (August 10, 2005) provides the State of Oklahoma opportunity to request approval from EPA to administer RCRA subtitle C in Indian Country and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). Oklahoma has not applied to administer this program in Indian Country pursuant to section 10211(a) of SAFETEA. Therefore, EPA will implement this program for all Indian Country located within the boundaries E:\FR\FM\04FER1.SGM 04FER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 22 (Wednesday, February 4, 2009)]
[Rules and Regulations]
[Pages 5991-5994]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2353]


=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 6

[EPA-HQ-OECA-2009-0006; FRL-8766-2]
RIN 2020-AA48


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:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Hargrove.robert@epa.gov.
     Fax: 202-564-0072, 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 
https://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 https://

[[Page 5992]]

www.regulations.gov or e-mail. The https://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 https://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 https://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://
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 https://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 (202) 566-1744, and the telephone number for the OECA 
Docket is (202) 566-1752.

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: (202) 564-7157; fax number: 
(202) 564-0072; e-mail address: Hargrove.robert@epa.gov.

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

[[Page 5993]]

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.

0
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]

0
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.


0
2. Section 6.102(b)(2) is revised to read as follows:


Sec.  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.
* * * * *

0
3. Section 6.204 is amended by revising paragraphs (a)(2)(vi) and 
(f)(2)(ii) to read as follows:


Sec.  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

[[Page 5994]]

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
* * * * *

0
4. Section 6.300(a) is revised to read as follows:


Sec.  6.300  Applicability.

    (a) This section applies to actions that involve applications to 
EPA for permits or assistance agreements, or request other EPA 
approval.
* * * * *
[FR Doc. E9-2353 Filed 2-3-09; 8:45 am]
BILLING CODE 6560-50-P

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