[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54667-54668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22090]


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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: Affirmation of interim final rule as final rule.

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SUMMARY: The Natural Resources Conservation Service (NRCS or Agency) 
published an Interim Final Rule on June 25, 2008, 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 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. The 
Council on Environmental Quality, in accordance with their regulations, 
reviewed and approved the proposed changes on June 11, 2008. The 
comment period on the interim final rule closed on July 25, 2008. No 
comments were received on the interim final rule. Accordingly, NRCS is 
issuing this final rule to indicate that no comments were received and 
to announce that the interim rule is final without change.

DATES: Effective September 23, 2008, the interim final rule published 
on June 25, 2008 (73 FR 35883) is confirmed as final.

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:

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 Final Rule

    The rule better aligns the NRCS' NEPA regulations with that of the 
CEQ's regulations that implement NEPA. The final rule amends 7 CFR 
650.5(c) Figure 1 by inserting ``Program EA'' to the flow chart on NRCS 
decisionmaking 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 decisionmaking 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 decisionmaking 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 those 
classes of action which normally require an EA and those that require 
an 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 
changes made in the NRCS final rule at 7 CFR 650.12 mirror that of 
CEQ's regulations. This change provides 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 final rule also allows 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 timeframe 
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 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 final rule is issued in accordance with the 
E.O. 12866. It has been determined that this final rule is not 
significant and, therefore, it has not been reviewed by 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

[[Page 54668]]

notice of final rulemaking with respect to the subject matter of this 
rule.

Environmental Analysis

    The 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 final rule 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 final rule on State, 
local, and tribal governments and the private sector. This final rule 
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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. After adoption of this final rule, (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 final rule; 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 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 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 final rule does not have Federalism 
implications.

Energy Effects

    This 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 final rule does not constitute a significant 
energy action as defined in E.O. 13211.
    For the reasons stated in the preamble, under the authority at 42 
U.S.C. 4321 et seq.; Executive Order 11514 (Rev.); 7 CFR 2.62, the 
Natural Resources Conservation Service confirms the interim rule 
amending 7 CFR part 650 which published at 73 FR 35883 on June 25, 
2008, is adopted as final without change.

Arlen L. Lancaster,
Chief, Natural Resources Conservation Service.
[FR Doc. E8-22090 Filed 9-22-08; 8:45 am]
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