[Federal Register Volume 68, Number 10 (Wednesday, January 15, 2003)]
[Proposed Rules]
[Pages 1988-1991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-713]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Part 1794

RIN 0572-AB73


Environmental Policies and Procedures

AGENCY: Rural Utilities Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Rural Utilities Service (RUS) is proposing to amend its 
existing environmental regulations, Environmental Policies and 
Procedures, which have served as RUS' implementation of the National 
Environmental Policy Act (NEPA) in compliance with the Council on 
Environmental Quality (CEQ) Regulations for Implementing the Procedural 
Provisions of the NEPA. Based on a greater use of small-scale and 
distributed generation and renewable resources, and the agency's 
experience and review of its existing procedures, RUS has determined 
that several changes are necessary for its environmental review process 
to operate in a more effective and efficient manner.

DATES: Written comments must be received by RUS or bear a postmark or 
equivalent, no later than February 14, 2003.

ADDRESSES: Written comments should be sent to F. Lamont Heppe, Jr., 
Director, Program Development and Regulatory Analysis, Rural Utilities 
Service, U.S. Department of Agriculture, Stop 1522, 1400 Independence 
Ave., SW., Washington, DC 20250-1522. RUS requests a signed original 
and three copies of all comments (7 CFR 1700.4). Comments will be 
available for public inspection during regular business hours (7 CFR 
1.27(b)).

FOR FURTHER INFORMATION CONTACT: Lawrence R. Wolfe, Senior 
Environmental Protection Specialist, Engineering and Environmental 
Staff; Rural Utilities Service, Stop 1571, 1400 Independence Ave., SW., 
Washington, DC 20250-1571. Telephone (202) 720-1784. E-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore has not been reviewed 
by the Office of Management and Budget (OMB).

Executive Order 12372

    This rule is excluded from the scope of Executive Order 12372, 
Intergovernmental Consultation, which requires consultation with State 
and local officials. See the final rule related notice titled 
``Department Programs and Activities Excluded from Executive Order 
12372'' (50 FR 47034) advising that RUS loans and loan guarantees were 
not covered by Executive Order 12372.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. RUS has determined that this proposed rule meets 
the applicable standards provided in section 3 of the Executive Order. 
In addition, all state and local laws and regulations that are in 
conflict with this rule will be preempted. No retroactive effect will 
be given to this rule, and, in accordance with section 212(e) of the 
Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 
6912(e)), administrative appeals procedures, if any are required, must 
be exhausted before an action against the Department or its agencies.

Regulatory Flexibility Act Certification

    In accordance with the Regulatory Flexibilility Act (5 U.S.C. 601 
et seq.), the Administrator of RUS has determined that this proposed 
rule, if adopted, would not have significant impact on a substantial 
number of small entities. The proposed rule would serve to clarify the 
existing regulation and to change the existing classification of 
selected minor actions to generally streamline the environmental review 
process for such actions. Most of the proposed changes in the proposed 
rule should result in modest cost savings and ease the regulatory 
compliance burden for affected applicants.

Information Collection and Recordkeeping Requirements

    This rule contains no additional information collection or 
recordkeeping requirements under OMB control number 0572-0117 that 
would require approval under the Paperwork Reduction Act of 1995 (44 
U.S.C. Chapter 35).

Unfunded Mandates

    This rule contains no Federal mandates (under the regulatory 
provision of title II of the Unfunded Mandates Reform Act) for State, 
local, and tribal governments of the private sector. Thus, this 
proposed rule is not subject to the requirements of section 202 and 205 
of the Unfunded Mandates Reform Act.

National Environmental Policy Act Certification

    RUS has determined that this proposed rule will not significantly 
affect the quality of the human environment as defined by the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) Therefore, 
this action does not require an environmental impact statement or 
assessment.

Program Affected

    The program described by this proposed rule is listed in the 
Catalog of Federal Domestic Assistance programs under numbers 10.850, 
Rural Electrification Loans and Loan Guarantees. This catalog is 
available on a subscription basis from the Superintendent of Documents, 
the U.S. Government Printing Office, Washington, DC 20402-9325, 
telephone number (202) 512-1800.

Background

    On December 11, 1998, the Rural Utilities Service (RUS) published 7 
CFR Part 1794, Environmental Policies and Procedures, as a final rule 
in the Federal Register (63 FR 68648) covering the actions of the 
electric, telecommunications, and water and waste programs. Based on a 
greater emphasis within the electric industry on the use of small-scale 
and distributed generation and renewable resources, and the agency's 
experience and review of its existing procedures, RUS has

[[Page 1989]]

determined that several changes are necessary for its environmental 
review process to operate in a more effective and efficient manner.
    This proposed rule contains a variety of changes from the 
provisions of the current rule. Most of these revisions are minor or 
merely intended to clarify existing RUS policy and procedure and to 
ensure that procedures are consistent among the three RUS programs. 
Other revisions expand upon the existing types of actions that are 
subject to environmental review or reclassify actions within 
categories.
    Within subpart A, the term ``distributed generation'' has been 
added to the list of definitions and the term ``Environmental Analysis 
(EVAL)'' has been deleted from the list of definitions in Sec.  1794.6. 
A fourth bulletin was issued in early 2002 that provides guidance in 
preparing for and carrying out scoping for electric generation and 
transmission projects that require either an environmental assessment 
with scoping or an environmental impact statement. Further information 
on the four RUS guidance bulletins is provided in Sec.  1794.7.
    Within subpart B, language clarifying RUS policy regarding the 
completion of RUS environmental review process for certain categories 
of actions has been added to Sec.  1794.14(a).
    Within subpart C, a number of additional listings to the existing 
classification and changes to selected listings within the existing 
classification are being proposed. These proposed reclassifications 
involve minor actions proposed by applicants, which rarely, if ever, 
result in significant environmental impact or public interest. These 
changes will streamline environmental review of minor actions, and will 
allow the agency to focus its resources on larger projects. RUS 
believes that the proposed changes will provide adequate safeguards to 
identify any unusual circumstances that may require additional agency 
scrutiny.
    Within Sec.  1794.21(a), RUS proposes to add separate categories 
for generating facilities of less than 100 kilowatts and the co-firing 
of bio-fuels and refuse derived fuels at existing fossil-fueled 
generating stations. Within Sec.  1794.22(a), RUS proposes to modify 
the capacity thresholds for distributed generation facilities at 
existing sites. Two new categories of proposals involving natural gas 
pipelines and combined cycle facilities at existing sites would be 
added to Sec.  1794.22(a).
    In addition to including fuel cell and combined cycle generation in 
the same listings as combustion turbines, RUS proposes to add three new 
categories of proposals within Sec.  1794.23. Proposed length and 
capacity threshold changes within Sec.  1794.23, reflect changes that 
would be made in Sec.  1794.22(a). Within Sec. Sec.  1794.24 and 
1794.25 the only proposed change would include fuel cell and combined 
cycle generation in the same listing as combustion turbines.
    RUS proposes to modify its procedures in subparts E through G of 
this part. In Sec. Sec.  1794.43 and 1794.44, RUS would eliminate the 
requirement to publish in the Federal Register, notice of Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) 
availability for electric and telecommunications proposed actions 
described in Sec.  1794.23. RUS has determined that no appreciable 
benefit has resulted from publishing a separate Federal Register notice 
for proposals in that category. By this change the notice requirements 
for all three programs would be consistent for all EA proposals 
described in Sec.  1794.23. Electric proposals described in Sec.  
1794.24 would still be subject to this requirement.
    RUS would modify its policy regarding the use of a contractor 
prepared Environmental Impact Statement (EIS). Under the existing 
regulation, the EIS would either be developed by RUS from an applicant 
prepared Environmental Analysis (EVAL) or prepared with the assistance 
of a consultant selected by RUS. Based on its experience in recent 
years, RUS expects to utilize the services of a consultant selected by 
and working for RUS for all actions requiring the preparation of an 
EIS. RUS does not contemplate preparing a draft or final EIS relying on 
an applicant prepared EVAL, as currently stated in Sec.  1794.61(b). 
Therefore, RUS proposes to delete Sec.  1794.61(b). Also, the applicant 
submitted document for all proposals will be titled an environmental 
report (ER). Previously, the applicant supplied document for a Sec.  
1794.24 proposal was an EVAL. These proposed changes would affect 
Sec. Sec.  1794.50, 1794.52 through 1794.54, and 1794.61.

List of Subjects in 7 CFR Part 1794

    Environmental impact statements, Reporting and recordkeeping 
requirements.

    For reasons set forth in the preamble, chapter XVII of title 7 of 
the Code of Federal Regulations, is proposed to be amended by revising 
part 1794 to read as follows:

PART 1794--ENVIRONMENTAL POLICIES AND PROCEDURES

    1. The authority citation for part 1794 continues to read as 
follows:

    Authority: 7 U.S.C. 6941 et seq., 42 U.S.C. 4321 et seq.; 40 CFR 
Parts 1500-1508.

    2. Section 1794.6 is amended by:
    A. Removing the definition for ``Environmental Analysis (EVAL)'';
    B. Adding the definition for ``Distributed Generation'', and
    C. Amending the definition for ``Environmental Report (ER) by 
revising the first sentence.
    These amendments are to read as follows:


Sec.  1794.6  Definitions.

* * * * *
    Environmental Report (ER). The environmental documentation normally 
submitted by applicants for proposed actions subject to compliance with 
Sec. Sec.  1794.22 through 1794.24. * * *
* * * * *
    Distributed Generation. The generation of electricity by a 
sufficiently small electric generating system as to allow 
interconnection of the system near the point of service at distribution 
voltages or customer voltages. A distributed generating system may be 
fueled by any source, including but not limited to renewable energy 
sources.
* * * * *
    3. Section 1794.7(a) is revised to read as follows:


Sec.  1794.7  Guidance.

    (a) Electric and Telecommunications Programs. For further guidance 
in the preparation of public notices and environmental documents, RUS 
has prepared a series of program specific guidance bulletins. RUS 
Bulletin 1724A-600 provides guidance in preparing the ER for proposed 
actions classified as categorical exclusions (CEs) (Sec.  1794.22(a)); 
RUS Bulletin 1794A-601 provides guidance in preparing the ER for 
proposed actions which require EAs (Sec.  1794.23(b) and (c)); and RUS 
Bulletin 1794A-603 provides guidance in conducting scoping for proposed 
actions classified as requiring an EA with scoping or an EIS. Copies of 
these bulletins are available upon request by contacting the Rural 
Utilities Service, Publications Office, Program Development and 
Regulatory Analysis, Stop 1522, 1400 Independence Avenue, SW., 
Washington, DC 20250-1522.
* * * * *
    4. Section 1794.15(a) is amended by adding new paragraphs (a)(1), 
(a)(2), and (a)(3), to read as follows:

[[Page 1990]]

Sec.  1794.15  Limitations on actions during the NEPA process.

    (a) * * *
    (1) A categorical exclusion determination has been made for 
proposals listed under Sec. Sec.  1794.21 and 1794.22.
    (2) Applicant notices announcing the RUS FONSI determination have 
been published for proposals listed under Sec. Sec.  1794.23 and 
1794.24.
    (3) Applicant notices announcing the RUS Record of Decision have 
been published for proposals listed under Sec.  1794.25.
* * * * *
    5. Section 1794.21 is amended by adding new paragraphs (b)(25) and 
(26) to read as follows:


Sec.  1794.21  Categorically excluded proposals without an ER.

* * * * *
    (b) * * *
    (25) Electric generating facilities of less than 100 kilowatts at 
any one site for the purpose of providing limited service to customers 
or facilities such as stock tanks and irrigation pumps.
    (26) New bulk commodity storage and associated handling facilities 
within existing fossil-fueled generating station boundaries for the 
purpose of co-firing bio-fuels and refuse derived fuels. A description 
of the facilities to be constructed shall be provided to RUS.
* * * * *
    6. Section 1794.22 is amended by revising paragraphs (a)(8) and (9) 
and by adding new paragraphs (a)(12) and (13) to read as follows:


Sec.  1794.22  Categorically excluded proposals requiring an ER.

    (a) * * *
    (8) Construction of distributed generation totaling 10 MW or less 
at an existing utility, industrial, commercial or educational facility 
site. There is no capacity limit for a generating facility located at 
or adjacent to an existing landfill site that is powered by refuse 
derived fuel. All new associated facilities and related electric power 
lines shall be covered in the ER;
    (9) Installation of new generating units or the replacement of 
existing generating units at a hydroelectric facility or dam which 
result in no change in the normal maximum surface area or normal 
maximum surface elevation of the existing impoundment. All new 
associated facilities and related electric power lines shall be covered 
in the ER;
* * * * *
    (12) Installing a heat recovery steam generator and steam turbine 
with a rating of 200 MW or less on an existing combustion turbine 
generation site for the purpose of combined cycle operation. All new 
associated facilities and related electric power lines shall be covered 
in the ER.
    (13) Construction of a natural gas pipeline (ten miles or less in 
length) to serve an existing gas-fueled generating facility.
* * * * *
    7. Section 1794.23 is amended by:
    A. Revising paragraphs (c)(1), (c)(2), and (c)(3), and
    B. Adding new paragraphs (c)(12) and (c)(13)
    This revision and additions are to read as follows:


Sec.  1794.23  Proposals normally requiring an EA.

* * * * *
    (c) * * *
    (1) Construction of fuel cell, combustion turbine, combined cycle, 
or diesel generating facilities of 50 MW (nameplate rating) or less at 
a new site (no existing generating capacity) except for items covered 
by Sec.  1794.22(a)(8). All new associated facilities and related 
electric power lines shall be covered in the EA;
    (2) Construction of fuel cell, combustion turbine, combined cycle, 
or diesel generating facilities of 100 MW (nameplate rating) or less at 
an existing generating site, except for items covered by Sec.  
1794.22(a)(8). All new associated facilities and related electric power 
lines shall be covered in the EA;
    (3) Construction of any other type of new electric generating 
facility of 20 MW (nameplate rating) or less, except for items covered 
by Sec.  1794.22(a)(8). All new associated facilities and related 
electric power lines shall be covered in the EA;
* * * * *
    (12) Installing a heat recovery steam generator and steam turbine 
with a rating of more than 200 MW on an existing combustion turbine 
generation site for the purpose of combined cycle operation. All new 
associated facilities and related electric power lines shall be covered 
in the EA.
    (13) Construction of a natural gas pipeline (more than ten miles in 
length) to serve an existing gas-fueled generating facility.
    8. Section 1794.24(b)(2) is revised to read as follows:


Sec.  1794.24  Proposals normally requiring an EA with scoping.

* * * * *
    (b) * * *
    (2) Construction of fuel cell, combustion turbine, combined cycle, 
and diesel generating facilities of more than 50 MW at a new site or 
more than 100 MW at an existing site; and the construction of any other 
type of electric generating facility of more than 20 MW but not more 
than 50 MW (nameplate rating). All new associated facilities and 
related electric power lines shall be covered in any EA or EIS that is 
prepared.
* * * * *
    9. Section 1794.25(a)(1) is revised to read as follows:


Sec.  1794.25  Proposals normally requiring an EIS.

* * * * *
    (a) * * *
    (1) New electric generating facilities of more than 50 MW 
(nameplate rating) other than fuel cell, combustion turbine, combined 
cycle, or diesel generators. All new associated facilities and related 
electric power lines shall be covered in the EIS; and
* * * * *


Sec.  1794.43  [Amended]

    10. Amend Sec.  1794.43 by:
    A. Removing paragraph (b), and
    B. Amending paragraph (a) by removing the paragraph designation and 
the heading ``General''.
    11. Section 1794.44 is revised to read as follows:


Sec.  1794.44  Timing of agency action.

    RUS may take its final action on proposed actions requiring an EA 
(Sec.  1794.23) at any time after publication of the applicant notices 
that a FONSI has been made and any required review period has expired. 
When substantive comments are received on the EA, RUS may provide an 
additional period (15 days) for public review following the publication 
of its FONSI determination. Final action shall not be taken until this 
review period has expired.
    12. Section 1794.50 is revised to read as follows:


Sec.  1794.50  Normal sequence.

    For proposed actions covered by Sec.  1794.24 and other actions 
determined by the Administrator to require an EA with Scoping, RUS and 
the applicant will follow the same procedures for scoping and the 
requirements for notices and documents as for proposed actions normally 
requiring an EIS through the point at where project scoping has been 
completed. Following project scoping, RUS will make a judgment to have 
an EA prepared or contract for the preparation of an EIS.
    13. Section 1794.51(a) is revised to read as follows:

[[Page 1991]]

Sec.  1794.51  Preparation for scoping.

    (a) As soon as practicable after RUS and the applicant have 
developed a schedule for the environmental review process, RUS shall 
have its notice of intent to prepare an EA or EIS and schedule scoping 
meetings (Sec.  1794.13) published in the Federal Register (see 40 CFR 
1508.22). The applicant shall have published, in a timely manner, a 
notice similar to RUS' notice.
* * * * *
    14. Section 1794.52(d) is amended by removing the last sentence and 
adding a new sentence at the end of the paragraph to read as follows:


Sec.  1794.52  Scoping meetings.

* * * * *
    (d) * * * The applicant or its consultant shall prepare a record of 
the scoping meeting. The record shall consist of a transcript when a 
traditional meeting format is used or a summary report when an open 
house format is used.
* * * * *
    15. Section 1794.53 is revised to read as follows:


Sec.  1794.53  Environmental report.

    (a) After scoping procedures have been completed, RUS shall require 
the applicant to develop and submit an ER. The ER shall be prepared 
under the supervision and guidance of RUS staff and RUS shall evaluate 
and be responsible for the accuracy of all information contained 
therein.
    (b) The applicant's ER will normally serve as the RUS EA. After RUS 
has reviewed and found the ER to be satisfactory, the applicant shall 
provide RUS with a sufficient number of copies of the ER to satisfy the 
RUS distribution plan.
    (c) The ER shall include a summary of the construction and 
operation monitoring and mitigation measures for the proposed action. 
These measures may be revised as appropriate in response to comments 
and other information, and shall be incorporated by summary or 
reference into the FONSI.
    16. Section 1794.54 is revised to read as follows:


Sec.  1794.54  Agency determination.

    Following the scoping process and the development of a satisfactory 
ER by the applicant or its consultant that will serve as the agency's 
EA, RUS shall determine whether the proposed action is a major Federal 
action significantly affecting the quality of the human environment. If 
RUS determines the action is significant, RUS will continue with the 
procedures in subpart G of this part. If RUS determines the action is 
not significant, RUS will proceed in accordance with Sec. Sec.  1794.42 
through 1794.44, except that RUS shall have a notice published in the 
Federal Register that announces the availability of the EA and FONSI.


Sec.  1794.61  [Amended]

    17. Section 1794.61 is amended by:
    A. Removing paragraph (b).
    B. Redesignating paragraph (a) as the introductory text; paragraph 
(a)(1) as (a); paragraph (a)(2) as (b); and paragraph (a)(3) as (c).

    Dated: December 24, 2002.
Blaine D. Stockton,
Acting Administrator, Rural Utilities Service.
[FR Doc. 03-713 Filed 1-14-03; 8:45 am]
BILLING CODE 3410-15-P