[Federal Register Volume 74, Number 22 (Wednesday, February 4, 2009)]
[Rules and Regulations]
[Pages 5991-5994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2353]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 6

[EPA-HQ-OECA-2009-0006; FRL-8766-2]
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: Direct final rule.

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SUMMARY: EPA is issuing a direct final rule to make corrections to 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.

DATES: This rule is effective on April 6, 2009 without further notice, 
unless EPA receives adverse comment by March 6, 2009. If EPA receives 
adverse comment, we will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2009-0006, 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.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2009-0006. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://

[[Page 5992]]

www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Public Reading 
Room, Room B102, Enforcement and Compliance Docket and Information 
Center, EPA West, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OECA 
Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Robert Hargrove, Office of Enforcement 
and Compliance Assurance, NEPA Compliance Division (MC 2252A), 
Environmental Protection Agency, 1200 Pennsylvania Avenue, 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 Using a Direct Final Rule?
    B. Does This Rule Apply to Me?
    C. Statutory Authority
    D. Background
II. EPA's Final Action
III. Statutory and Executive Order Reviews

I. General Information

A. Why Is EPA Using a Direct Final Rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a non-controversial action and anticipate no adverse 
comment. The four changes that are being made to the rule involve no 
substantive or procedural changes. However, in the ``Proposed Rules'' 
section of today's Federal Register, we are publishing a separate 
document that will serve as the proposed rule to make these four 
corrections if adverse comments are received on this direct final rule. 
We will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

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 CEQ Regulations at 40 CFR parts 1500 
through 1508 establish procedures 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 Final Action

    Following the publication of the final rule, four minor errors were 
discovered. Through this direct final 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 direct final rule.
    We are publishing this rule without prior proposal because the 
Agency

[[Page 5993]]

views this as a non-controversial action and anticipates no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal should adverse comments be filed. This action 
will be effective April 6, 2009, without further notice unless the EPA 
receives relevant adverse comments by March 6, 2009.
    If we receive adverse comments, we will publish a document 
withdrawing this final rule and informing the public that it will not 
take effect. In that case, all public comments received will be 
addressed in a subsequent final rule based on the proposed rule that is 
being published in today's Federal Register. We will not institute a 
second comment period. Parties interested in commenting should do so at 
this time. If no adverse comments are received, the public is advised 
that this rule will be effective on April 6, 2009 and no further action 
will be taken on the 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, 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 EO 13045 (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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined. 5 U.S.C. 
804(2). This rule will be effective April 6, 2009.

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.

0
Therefore, for the reasons set forth in the preamble, EPA hereby amends 
title 40, chapter I of the Code of Federal Regulations as follows:

PART 6--[AMENDED]

0
1. The authority citation for Part 6 continues to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 7401-7671q unless otherwise 
noted.


0
2. Section 6.102(b)(2) is revised to read as follows:


Sec.  6.102  Definitions.

* * * * *
    (b) * * *
    (2) Applicant means any individual, agency, or other entity that 
has:
    (i) Filed an application for federal assistance;
    (ii) Applied to EPA for a permit; or
    (iii) Requested other EPA approval.
* * * * *

0
3. Section 6.204 is amended by revising paragraphs (a)(2)(vi) and 
(f)(2)(ii) to read as follows:


Sec.  6.204  Categorical exclusions and extraordinary circumstances.

* * * * *
    (a) * * *
    (2) * * *
    (vi) Actions involving the acquisition, transfer, lease, 
disposition, or closure of existing permanent structures, land, 
equipment, materials or personal property provided that the property: 
Is either vacant or has been used solely for office functions; has 
never been used for laboratory purposes by any party; does not require 
site remediation; and will be used in essentially the same manner such 
that the type and magnitude of the impacts will not change 
substantially. This category does not include activities related to 
construction and/or

[[Page 5994]]

demolition of structures on the property (see paragraph (a)(1)(i) of 
this section).
* * * * *
    (f) * * *
    (2) * * *
    (ii) Actions covered by the proposed categorical exclusion 
generally do not involve extraordinary circumstances as set out in 
paragraphs (b)(1) through (b)(10) of this section and generally do not 
require preparation of an EIS; and
* * * * *

0
4. Section 6.300(a) is revised to read as follows:


Sec.  6.300  Applicability.

    (a) This section applies to actions that involve applications to 
EPA for permits or assistance agreements, or request other EPA 
approval.
* * * * *
[FR Doc. E9-2353 Filed 2-3-09; 8:45 am]
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