[Federal Register Volume 74, Number 22 (Wednesday, February 4, 2009)]
[Proposed Rules]
[Pages 6008-6010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2350]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 6

[EPA-HQ-OECA-2009-0006; FRL-8766-1]
RIN 2020-AA48


Procedures for Implementing the National Environmental Policy Act 
and Assessing the Environmental Effects Abroad of EPA Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to correct its rule entitled ``Procedures for 
Implementing the National Environmental Policy Act and Assessing the 
Effects Abroad of EPA Actions,'' which was published September 19, 
2007. Since the final rule became effective on October 19, 2007, EPA 
has received inquiries about some minor inconsistencies and ambiguities 
in the final rule. This action involves four minor, technical 
corrections to the rule to address those issues. The first correction 
expands the definition of ``applicants'' to include those who request 
EPA approvals. The second change clarifies that a categorical exclusion 
includes vacant land. The third change corrects the text to indicate 
that the number of extraordinary circumstances is ten. The last change 
expands Subpart C to apply to EPA approvals as well as permits and 
assistance grants. In the ``Rules and Regulations'' section of this 
Federal Register, we have made these four changes as a direct final 
rule without a prior proposed rule. If we receive no adverse comment, 
we will not take further action on this proposed rule.

DATES: Any comments must be received by March 6, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. [EPA-HQ-

[[Page 6009]]

OECA-2009-0006], by mail to by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-564-0072, Attention: Robert Hargrove.
     Mail: EPA-HQ-OECA-2009-0006, Environmental Protection 
Agency, EPA Docket Center (EPA/DC), Enforcement and Compliance Docket 
and Information Center, Mailcode: 2201T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
     Hand Delivery: Public Reading Room, Room B102, Enforcement 
and Compliance Docket and Information Center, EPA West Building, 1301 
Constitution Avenue, NW., Washington, DC 20004. Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Hargrove; NEPA Compliance 
Division; Office of Federal Activities (Mailcode 2252A), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: (202) 564-7157; fax number: (202)-564-0072; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION: This preamble is organized according to the 
following outline:

I. General Information
    A. Why Is EPA Publishing a Proposed Rule?
    B. Does This Rule Apply to Me?
    C. Statutory Authority
    D. Background
II. EPA's Action
III. Statutory and Executive Order Reviews

I. General Information

A. Why Is EPA Publishing a Proposed Rule?

    EPA is proposing to take action on ``Procedures for Implementing 
the National Environmental Policy Act and Assessing the Environmental 
Effects Abroad of EPA Actions.'' We have published a direct final rule 
which includes only four minor corrections to these procedures in the 
``Rules and Regulations'' section of this Federal Register because we 
view this as a non-controversial action and anticipate no adverse 
comment.

B. Does This Rule Apply to Me?

    Those subject to this rule include EPA employees who must comply 
with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-
4347), and certain grant and permit applicants who must submit 
environmental information documentation to EPA for their proposed 
projects.

C. Statutory Authority

    NEPA establishes the federal government's national policy for 
protection of the environment. The Council on Environmental Quality's 
(CEQ's) Regulations at 40 CFR parts 1500 through 1508 establish 
procedures for implementing this national policy. The CEQ's Regulations 
(40 CFR 1505.1) require federal agencies to adopt and, as needed, 
revise their own NEPA implementing procedures to supplement the CEQ 
Regulations and to ensure their decision-making processes are 
consistent with NEPA.

D. Background

    On September 19, 2007 (72 FR 53652), EPA published a final rule 
amending its regulations for implementing NEPA and Executive Order 
12114, ``Environmental Effects Abroad of Major Federal Actions.'' The 
Agency amended its NEPA implementing procedures by: (1) Consolidating 
and standardizing the procedural provisions and requirements of the 
Agency's environmental review process under NEPA; (2) clarifying the 
general procedures associated with categorical exclusions, 
consolidating the categories of actions subject to categorical 
exclusion, amending existing and adding new categorical exclusions, and 
consolidating and amending existing and adding new extraordinary 
circumstances; (3) consolidating and amending the listing of actions 
that generally require an environmental impact statement; (4) 
clarifying the procedural requirements for consideration of applicable 
environmental review laws and executive orders; and (5) incorporating 
other proposed revisions consistent with CEQ Regulations. The final 
rule supplements and is used in conjunction with the CEQ NEPA 
Regulations. 40 CFR part 6 also includes EPA's procedures, ``Assessing 
the Environmental Effects Abroad of EPA Actions,'' that implement 
Executive Order 12114, ``Environmental Effects Abroad of Major Federal 
Actions'' (see 46 FR 3364). The final rule included minor, technical 
amendments to EPA's procedures for implementing the Order.

II. EPA's Action

    Following the publication of the final rule, four minor errors were 
discovered. Through this proposed rule, the Agency is correcting these 
errors. The first correction is a minor expansion of the definition of 
``applicant,'' found at 40 CFR 6.102(b)(2). The revised definition now 
includes those who request EPA approval in addition to those who 
request financial assistance or who are applying to EPA for a permit. 
The next correction involves the categorical exclusion (CE) found at 40 
CFR 6.204(a)(2)(vi). That CE allows for the acquisition, transfer, 
lease, disposition or closure of existing permanent structures, land, 
equipment, materials, or personal property as long as a number of 
provisions are met. The CE is being corrected to include vacant land 
because the acquisition of vacant land meets the required provisions. 
The third correction is to 40 CFR 6.204(f)(2)(ii), which states that 
there are 14 extraordinary circumstances. The final rule, however, 
contains only ten extraordinary circumstances. The last correction is 
to 40 CFR 6.300(a), which is being expanded to apply to those who are 
requesting other EPA approvals. Accordingly, EPA is correcting these 
minor errors through this proposed rule. EPA anticipates no adverse 
comments to these minor technical changes, and has therefore published 
this action as a direct final rule in the ``Rules and Regulations'' 
section of this Federal Register. Any parties interested in commenting 
must do so at this time. If we receive no adverse comment, we will not 
take further action on this proposed rule. If we receive adverse 
comment, we will withdraw the direct final rule and it will not take 
effect. We would address all public comments in any subsequent final 
rule based on this proposed rule.

III. Statutory and Executive Order Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely makes technical corrections to a recently finalized rule, and 
does not impose any additional requirements. This rule does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This action contains 
no Federal mandates under the provisions of Title II of the Unfunded 
Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, 
local, or tribal governments or the private sector. Therefore, this 
action is not subject to the requirements of sections 202 or 205 of the 
UMRA. Because this rule does not impose any additional enforceable 
duty,

[[Page 6010]]

it does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4).
    This action also does not have federalism implications because it 
does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). Thus, Executive Order 13132 does not apply to this rule. 
This action merely makes technical corrections to a recently-finalized 
rule and does not alter the relationship or the distribution of power 
and responsibilities.
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 97249, November 9, 2000). Thus, Executive Order 13175 does not apply 
to this action. EPA interprets Executive Order 13045 ``Protection of 
Children from Environmental Health and Safety Risks'' (62 FR 19885, 
April 23, 1997) as applying only to those regulatory actions that 
concern health or safety risks, such that the analysis required under 
section 5-501 of the EO has the potential to influence the regulation. 
This action is not subject to EO 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.
    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This action does not involve technical 
standards. Therefore, EPA did not consider the use of any voluntary 
consensus standards. The requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action merely makes technical corrections to a 
recently-finalized rule, and these corrections have no effect on 
minority or low-income populations.

List of Subjects in 40 CFR Part 6

    Environmental protection, Environmental assessments, Environmental 
impact statements, Environmental protection reporting, Foreign 
relations, Grant programs--environmental protection, Reporting and 
recordkeeping requirements.

    Dated: January 15, 2009.
Stephen L. Johnson,
Administrator.
[FR Doc. E9-2350 Filed 2-3-09; 8:45 am]
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