[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]
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