[Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
[Rules and Regulations]
[Pages 72019-72022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33378]


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EMERGENCY STEEL GUARANTEE LOAN BOARD

13 CFR Part 400

RIN 3004-ZA00


Loan Guarantee Decisions; Availability of Environmental 
Information

AGENCY: Emergency Steel Guarantee Loan Board.

ACTION: Interim final rule and request for comments.

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SUMMARY: In accordance with the Council on Environmental Quality's 
regulations implementing the National Environmental Policy Act 
(``NEPA''), the Emergency Steel Guarantee Loan Board (``Board'') is 
adopting NEPA procedures. 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 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, these amendments add language to clarify the 
collateral and security interests necessary for each guarantee and 
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: Jay E. Dittus, Executive 
Director, Emergency Steel Guarantee Loan Board, U.S. Department of 
Commerce, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: Jay E. Dittus, Executive Director, 
Emergency Steel Guarantee 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 Steel Guarantee 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 Steel Guarantee Loan Program, 13 CFR 
400.206, 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

[[Page 72020]]

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 guaranteed 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 one change to the substantive program regulations 
contained in subpart C of part 400. 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 the 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.
    Finally, 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 a complete application with the Board.

Administrative Law Requirements

Executive Order 12866

    This interim final rule has been determined not to be a significant 
for purposes of Executive Order 12866.

Administrative 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 preparation of a Federalism Assessment.

Executive Order 12630

    This rule does not contain policies that have takings implications.

List of Subjects in 13 CFR Part 400

    Administrative practice and procedure, Environmental impact 
statement, Freedom of Information, Loan Programs--Steel, Reporting and 
recordkeeping requirements.
Jay E. Dittus,
Executive Director, Emergency Steel Guarantee Loan Board.

    For the reasons set forth in the preamble, the Emergency Steel Loan 
Guarantee Board amends 13 CFR part 400 as follows:

PART 400--[AMENDED]

    1. The authority citation for part 400 continues to read as 
follows:

    Authority: Pub. L. 106-51, 113 Stat. 252 (15 U.S.C. 1841 note).

    2. Section 400.204(c)(2) is revised to read as follows:


Sec. 400.204  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, refinanced, or derived from 
the loan funds;
    (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 400.205(a) is revised to read as follows:

[[Page 72021]]

Sec. 400.205  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.
* * * * *
    4. Section 400.206 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. 400.206  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
    (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. (ii) 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. (1) 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

[[Page 72022]]

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 400.206. 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, suitable for public 
review 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. These sources 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 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 describe 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 describe 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 remain a record of these decisions, 
making them available to interested parties upon request. Requests 
should be directed to the Executive Director, Emergency Steel 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 the 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 in 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 made 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. 99-33378 Filed 12-22-99; 8:45 am]
BILLING CODE 1310-FP-M