[Federal Register Volume 73, Number 123 (Wednesday, June 25, 2008)]
[Rules and Regulations]
[Pages 35883-35886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14122]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 73, No. 123 / Wednesday, June 25, 2008 / 
Rules and Regulations  

[[Page 35883]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 650

RIN 0578-AA41
[Docket No. NRCS-IFR-08001]


Regulations for Complying With the National Environmental Policy 
Act

AGENCY: Natural Resources Conservation Service (NRCS), USDA.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Natural Resources Conservation Service (NRCS or Agency) is 
amending its National Environmental Policy Act (NEPA) compliance 
regulations by clarifying the appropriate use of a program 
environmental assessment (EA) and by aligning its NEPA public 
involvement process with that of the Council on Environmental Quality's 
(CEQ) regulations that implement the NEPA. Both changes would better 
align the Agency regulations with the CEQ NEPA regulations and provide 
for the efficient and timely environmental review of NRCS actions, 
particularly those actions where Congress has directed NRCS action 
within short time periods of 60-90 days.

DATES: Effective date: This rule is effective June 25, 2008.
    Comment date: Submit comments on or before July 25, 2008.

ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08001) using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Ecological Sciences Division, Natural Resources 
Conservation Service, Compliance with NEPA Comments, P.O. Box 2890, 
Room 6158-S, Washington, DC 20013.
     Fax: 1-202-720-2646.
     Hand Delivery: Room 6158-S of the USDA South Office 
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between 
9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. For 
more information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Matt Harrington, National 
Environmental Coordinator, Ecological Sciences Division, NRCS, P.O. Box 
2890, Room 6158-S, Washington, DC 20013; telephone (202) 720-4925; 
submit e-mail to: [email protected], Attention: Compliance 
with NEPA comments.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The NRCS invites interested persons to submit written comments, 
data(s), or views. The most helpful comments reference a specific 
portion of the revisions, explain the reason for any recommended 
further changes, and include supporting data. We ask that you send us 
two copies of written comments.
    We will file all comments we receive in the docket, as well as a 
report summarizing each substantive public comment with NRCS personnel 
concerning this interim final rulemaking. The docket, including any 
personal information you provide, is made available for public 
inspection.
    We will consider all comments we receive on or before the closing 
date for comments when we review the final rule's implementation and 
determine whether further action on these sections is necessary. We 
will consider comments filed late if it is possible to do so without 
incurring expense or delay.

Availability of Rulemaking Documents

    You can get an electronic copy of the full Compliance with NEPA 
rule using the Internet through the NRCS homepage, at http://www.nrcs.usda.gov, and by selecting ``Programs,'' then ``National 
Environmental Policy Act (NEPA) Documents.''

Background

Synopsis of the Rule

    The rule will better align the NRCS' NEPA regulations with that of 
the CEQ's regulations that implement the NEPA. The rule amends 7 CFR 
650.5(c) Figure 1 by inserting ``Program EA'' to the flow chart on NRCS 
decision-making and the rule adds a section to 7 CFR 650.8(a), which 
discusses the criteria for determining the need for a program EA. The 
rule also makes changes to 7 CFR 650.12 so that 650.12 better conforms 
to CEQ's similar regulations.
    First, the rule amends 7 CFR 650.5(c) Figure 1 by inserting 
``Program EA'' to the flow chart on NRCS decision-making and by adding 
a section to 7 CFR 650.8 discussing the criteria for determining the 
need for a program EA. Previously, Agency regulations did not address 
NRCS' ability to tier to Program EAs or clarify when it is appropriate 
to use a program environmental assessment. The change to Figure 1 
explicitly confirms the State and field offices' ability to tier site 
specific environmental reviews and decision-making to either a Program 
EA or Program EIS. The change to section 650.8 clearly states when it 
is appropriate to use an environmental assessment. This change aligns 
NRCS' NEPA regulations with 40 CFR 1507.3(b)(2), which states that 
Agency NEPA regulations should identify specific criteria for and those 
classes of action which normally require EA but not EIS. For rulemaking 
actions under the Farm Bill, the Agency has prepared program EAs in the 
past because the limited significance of the actions did not warrant 
the preparation of an EIS. Therefore, this rule change provides for the 
efficient and timely environmental review of NRCS actions.
    Second, NRCS is changing the current requirement of publication of 
the notice of availability for every EA/FNSI in the Federal Register. 
CEQ regulations require public involvement in preparing any EA/Finding 
of No Significant Impact (FNSI) and require a 30 day review period of 
the EA/FNSI only in the following limited circumstances: (a) The action 
is, or closely similar to, one which normally requires the preparation 
of an EIS, as defined by NRCS NEPA implementing regulations at 7 CFR 
650.7, or (b) the nature of the action is one without precedent. The 
revised

[[Page 35884]]

interim final rule in 7 CFR 650.12 will change NRCS regulations to 
mirror CEQ's regulations. This will provide the Agency with the 
flexibility for all program actions to determine the most appropriate 
method of public involvement in preparing the EA/FNSI and the most 
appropriate method for publication of the notice of the availability of 
the EA/FNSI. As noted by CEQ regulations implementing NEPA (40 CFR 
1506.6), actions primarily of local concern may be published in local 
newspapers and use other means to reach the interested and affected 
members of the public.
    The rule will also allow the Agency to implement an action upon 
issuing the notice of availability of the EA/FNSI or at a specified 
time period after issuance of the notice based on the public 
involvement provided. For Agency actions with statutorily short 
rulemaking timeframes or for emergency actions, the ability to tailor 
public involvement and review allows the Agency to implement the action 
upon issuance of the notice of availability or a shorter time frame 
thereafter while still meeting the requirements of NEPA as well as its 
intent. This enables the Agency to prepare adequate NEPA analyses and 
to proceed with timely implementation for these important actions.

Regulatory Certifications

Executive Order 12866

    The NRCS reviewed this interim final rule under U.S. Department of 
Agriculture (Department) procedures and Executive Order 12866 issued 
September 30, 1993 (E.O. 12866), as amended by E.O. 13422 on Regulatory 
Planning and Review. This interim final is issued in accordance with 
the E.O. 12866. It has been determined that this interim final is not 
significant and, therefore, it has not been reviewed by the OMB.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because NRCS is not required by 5 U.S.C. 553 or 
any other provision of law to publish a notice of interim final 
rulemaking with respect to the subject matter of this rule.

Environmental Analysis

    The interim final rule amends the procedures for implementing the 
National Environmental Policy Act (NEPA) at 7 CFR part 650 and would 
not directly impact the environment. Agency NEPA procedures are 
procedural guidance to assist agencies in the fulfillment of agency 
responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular action. The CEQ set forth the requirements for establishing 
agency NEPA procedures in its regulations at 40 CFR 1505.1 and 1507.3. 
The CEQ regulations do not require agencies to conduct NEPA analyses or 
prepare NEPA documentation when establishing their NEPA procedures. The 
determination that establishing agency NEPA procedures does not require 
NEPA analysis and documentation has been upheld in Heartwood, Inc. v. 
U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir. 2000).

Paperwork Reduction Act

    There are no requirements for information collection associated 
with this interim final that would require approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538), NRCS has assessed the effects of this interim final on 
State, local, and Tribal governments and the private sector. This 
interim final does not compel the expenditure of $100 million or more 
by any State, local, or Tribal governments or anyone in the private 
sector. Therefore, a statement under section 202 of the Act is not 
required.

Civil Justice Reform

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. After adoption of this interim final, (1) 
all State and local laws and regulations that conflict with this rule 
or that would impede full implementation of this rule will be 
preempted; (2) no retroactive effect would be given to this interim 
final; and (3) before an action may be brought in a Federal court of 
competent jurisdiction, the administrative appeal rights afforded 
persons at 7 CFR parts 614, 780, and 11 must be exhausted.

Federalism

    NRCS has considered this interim final rule under the requirements 
of Executive Order 13132 issued August 4, 1999 (E.O. 13132), 
``Federalism.'' The Agency has made an assessment that the interim 
final rule conforms with the Federalism principles set out in this 
Executive Order; would not impose any compliance costs on the States; 
and would not have substantial direct effects on the States, on the 
relationship between the national government and the States, nor on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, NRCS concludes that this interim final rule does 
not have Federalism implications.

Energy Effects

    This interim final rule has been reviewed under Executive Order 
13211 issued May 18, 2001 (E.O. 13211), ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use.'' NRCS has determined that this interim final does not constitute 
a significant energy action as defined in E.O. 13211.

0
For the reasons stated in the preamble, the Natural Resources 
Conservation Service amends 7 CFR 650 as follows:

PART 650--COMPLIANCE WITH NEPA

0
1. The authority citation for part 650 is amended to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; Executive Order 11514 (Rev.); 
7 CFR 2.62, unless otherwise noted.


Sec.  650.5  [Amended]

0
2. Section 650.5, following paragraph (c), Figure 1 is revised.
BILLING CODE 3410-16-P

[[Page 35885]]

[GRAPHIC] [TIFF OMITTED] TR25JN08.003

BILLING CODE 3410-16-C

[[Page 35886]]


0
3. Section 650.8 paragraph (b) is revised, and paragraphs (c) and (d) 
are added as follows:


Sec.  650.8  When to prepare an environmental assessment (EA).

* * * * *
    (b) Other actions that the EE reveals may be a major Federal action 
significantly affecting the quality of the human environment.
    (c) Criteria for determining the need for a program EA:
    (1) A program EA is to be prepared when NRCS has determined, based 
on the environmental evaluation, that a program EIS is not required and 
the program and actions to implement the program are not categorically 
excluded; and
    (2) A program EA may also be prepared to aid in NRCS decision-
making and to aid in compliance with NEPA.
    (d) The RFO, through the process of tiering, is to determine if a 
site-specific EA or EIS is required for an action that is included in a 
program EA or EIS.

0
4. Section 650.12 paragraph (c) heading text is revised; the (c)(1) 
designation is removed; paragraphs (c)(2) and (c)(3) are removed; 
paragraph (d) is revised; and new paragraph (e) is added to read as 
follows:


Sec.  650.12  NRCS Decisionmaking.

* * * * *
    (c) Environmental Impact Statement (EIS) and Record of decision * * 
*
    (d) Environmental Assessments and Finding of No Significant Impact 
(FNSI)
    (1) EA's. If the EA indicates that the proposed action is not a 
major Federal action significantly affecting the quality of the human 
environment, the RFO is to prepare a finding of no significant impact 
(FNSI).
    (2) Availability of the FNSI (40 CFR 1501.4(e)(2)). In accordance 
with CEQ regulations at 40 CFR 1501.4(e)(2), NRCS shall make the EA/
FNSI available for public review for thirty days in the following 
instances: The proposed action is, or closely similar to, one which 
normally requires the preparation of an EIS as defined by NRCS NEPA 
implementing regulations at Sec.  650.7, or the nature of the action is 
one without precedent. When availability for public review for thirty 
days is not required, NRCS will involve the public in the preparation 
of the EA/FONSI and make the EA/FONSI available for public review in 
accordance with CEQ regulations at 40 CFR 1501.4(b) and 1506.6.
    (e) Changes in actions. When it appears that a project or other 
action needs to be changed, the RFO will perform an environmental 
evaluation of the authorized action to determine whether a supplemental 
NEPA analysis is necessary before making a change.

    Dated: June 11, 2008.
Arlen Lancaster,
Chief, Natural Resources Conservation Service.
 [FR Doc. E8-14122 Filed 6-24-08; 8:45 am]
BILLING CODE 3410-16-P