[Federal Register Volume 79, Number 111 (Tuesday, June 10, 2014)]
[Rules and Regulations]
[Pages 33095-33097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13418]



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POSTAL SERVICE

39 CFR Part 775


National Environmental Policy Act Implementing Procedures

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: The Postal Service (USPS)TM is publishing this 
final rule to amend a categorical exclusion (CATEX) in the Postal 
Service's National Environmental Policy Act (NEPA) implementing 
procedures. This document responds to comments received concerning a 
previously-published interim final rule, and adopts without change the 
text of the amendments set forth in the interim final rule.

DATES: Effective date: June 10, 2014.

FOR FURTHER INFORMATION CONTACT: Charlotte Parrish, Environmental 
Specialist, at [email protected] or 201-714-7216, or Matthew 
Raeburn, Environmental Counsel, at [email protected] or 202-
268-4570.

SUPPLEMENTARY INFORMATION: 

Summary

    On January 13, 2014, the Postal Service published an interim final 
rule with request for comments to amend a categorical exclusion (CATEX) 
in the Postal Service's National Environmental Policy Act (NEPA) 
implementing procedures (79 FR 2102). As explained in that document, 
the amendment focuses the CATEX more clearly on activities that, absent 
extraordinary circumstances, do not normally have the potential for 
individual or cumulative significant impacts on the quality of the 
human environment. The amendment also makes the CATEX consistent with 
analogous CATEXs used by the General Services Administration (GSA) and 
other major federal landowners.
    In response to the interim final rule, the Postal Service received 
five comment letters. Commenters included non-governmental 
organizations, a municipality, three Members of Congress, and an 
individual. The commenters expressed their concerns about the interim 
final rule, which the Postal Service discusses and responds to in this 
document. In short, the five comment letters received from the public 
have not raised issues prompting the Postal Service to modify or 
deviate from its interim final rule. This final rule thus confirms and 
adopts the interim final rule's amendment to the Postal Service's 
CATEX.

Rulemaking's Relation to Litigation Over Previous CATEX

    Some commenters note the rulemaking's timing given the preliminary 
injunction in National Post Office Collaborate v. Donahoe, No. 
3:13cv1406, 2013 WL 5818889 (D. Conn. Oct. 28, 2013). That the court's 
reading of the Postal Service's previously-worded CATEX in that case 
differs from the Postal Service's own longstanding interpretation 
demonstrates the need for clarification, which brings the Postal 
Service's CATEX into accord with federal agencies' comparable CATEXs.
    Regardless of its timing, the amended CATEX constitutes a 
reasonable interpretation of the Postal Service's obligations under 
NEPA. The United States Supreme Court has held that an ``initial agency 
interpretation [of a statute] is not instantly carved in stone'' and 
that any agency ``must consider varying interpretations and the wisdom 
of its policy on a continuing basis.'' Chevron, U.S.A., Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 863-64 (1984). As noted 
in the interim final rule, the Council on Environmental Quality (CEQ) 
has recommended that agencies periodically review their CATEXs and 
benchmark them against other agencies' (75 FR 75628, Feb. 18, 2010).
    One commenter asserted that the new CATEX would reinstate a process 
that was purportedly rejected or temporarily enjoined in National Post 
Office Collaborate. That portrayal of the court's order is inaccurate. 
The court did not find the Postal Service's application of its property 
disposal CATEX per se deficient under NEPA. Instead, the court found 
the Postal Service's application of the CATEX to be procedurally 
deficient based, in large part, on how the CATEX was worded prior to 
this rulemaking. National Post Office Collaborate, No. 3:13cv1406, 2013 
WL 5818889, at 13-15. At no point did the Court dispute the validity of 
the CATEX. Thus, this rulemaking merely clarifies the Postal Service's 
intent by rewording its property disposal CATEX, which, due to its 
former wording, the court in National Post Office Collaborate read 
differently from the Postal Service's longstanding interpretation.
    This rulemaking is not retroactive and does not affect actions 
taken under the prior CATEX. See generally, Bowen v. Georgetown Univ. 
Hosp., 488 U.S. 204, 208 (1988) (holding that agency regulations are 
not retroactive except as specifically authorized by Congress).

The Postal Service's Implementation of NEPA

    The Postal Service applies its NEPA process and implements its CEQ-
approved NEPA regulations for every property disposal. The interim 
final rule has not changed that, nor would this final rule. 
Nevertheless, a group of commenters suggests that the interim final 
rule would offer the Postal Service a way to bypass the NEPA reporting 
requirements that apply when there is no significant effect on the 
human environment. As was the case before this rulemaking, however, 
even where a proposed property disposal does not require an 
environmental assessment (EA), the Postal Service's NEPA process will 
still result in NEPA documentation: Notably, the Facilities 
Environmental Checklist and the Record of Environmental Consideration 
(see U.S. Postal Service, Facilities Environmental Guide Handbook RE-6 
Sec.  2-4.1 (Nov. 2004)). Those documents are a matter of public 
record. Rather than somehow bypassing NEPA, the Postal Service would 
continue to document its decisionmaking throughout the NEPA process, 
including where the Postal Service applies a CATEX, which itself is an 
application of NEPA.

The Postal Service's Consistency With Other Agencies' Interpretation of 
NEPA

    Some commenters assert that the amended CATEX does not follow NEPA, 
because it emphasizes the surrounding property uses around the Postal 
Service property proposed for disposal. As discussed in the interim 
final rule document, however, other federal landowners have 
incorporated the same comparison as an important aspect of their NEPA 
processes (79 FR 2102). The Postal Service's amended CATEX mirrors the 
language of a long-standing and well-established CATEX used by the 
General Services Administration (GSA) (see 65 FR 69558, Nov. 17, 2000). 
The amended CATEX also follows the lead of the United States Coast 
Guard (USCG), which similarly adopted a CATEX based on the GSA's 
language (78 FR 44140). The Postal Service is unaware of any authority 
suggesting those CATEXs are not valid exercises of the agencies' 
discretion in implementing NEPA.
    Several groups' combined comment letter purports to contrast the 
Postal Service's current regulations, which deem historic status to be 
one of many factors considered in completing its ``extraordinary 
circumstances'' checklist, with analogous provisions in the GSA and 
USCG regulations. Upon careful review of these comparable

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regulations and discussions with responsible personnel at each agency, 
the Postal Service has confirmed that its approach to historic property 
disposals under NEPA is no less thorough than the approaches shared by 
those other two federal owners of historic properties. Like the Postal 
Service, both GSA and USCG include historic status as one factor in a 
more holistic review of the proposed action, such that the CATEX may 
remain applicable to a historic property in light of mitigating actions 
and other circumstances. In this regard, those agencies' procedures 
remain consistent with the Postal Service's own.
    Some commenters assert that the Postal Service has not properly 
substantiated that property disposals under the revised CATEX would not 
normally result in significant environmental impacts. As explained in 
the interim final rule, CEQ has advised that an agency can substantiate 
its own CATEX by comparing another agency's experience promulgating and 
applying a comparable CATEX (see 75 FR 75628). That--along with the 
Postal Service's experience described in the interim final rule and the 
experience of two federal agencies with comparable CATEXs--supports the 
Postal Service's decision to finalize its amended property disposal 
CATEX via this final rule.
    All commenters convey the general notion that disposals of historic 
properties should warrant more NEPA review (not less). The Postal 
Service's revision to its CATEX in no way limits the Postal Service's 
NEPA review of historic properties. Like GSA and USCG, the Postal 
Service already has additional procedures specifically for reviewing 
proposed disposals of historic properties (see, Facilities 
Environmental Guide Handbook RE-6 Sec.  3-4.1 (``Historic and cultural 
resources are considered in the environmental planning processes, both 
environmental due diligence and NEPA[.]''). As explained with regard to 
the interim final rule (79 FR 2102, 2103), the Postal Service's 
procedural safeguards regarding historical properties remain an 
integral part of the Postal Service's property disposal process. See, 
e.g., Facilities Environmental Guide Handbook RE-6 Sec.  3-4.3.4.4.4 
(discussing circumstances prompting and requirements for implementing 
preservation covenants). Historic status remains a factor in 
determining whether ``extraordinary circumstances'' require further 
NEPA review, notwithstanding an otherwise applicable CATEX. This 
rulemaking does not diminish the significance of historic status as a 
factor in an overall assessment of potential environmental impacts and 
extraordinary circumstances.

Historical Status Is Not a Per Se Extraordinary Circumstance

    Some commenters ask that the Postal Service couple its CATEX 
revision with an amendment making a property's historic listing an 
``extraordinary circumstance'' that would automatically trigger an EA. 
This suggestion is at odds with CEQ guidance, however. According to 
CEQ, ``the agencies may define their extraordinary circumstances 
differently, so that a particular situation, such as the presence of a 
protected resource [e.g., historic property], is not considered an 
extraordinary circumstance per se, but a factor to consider when 
determining if there are extraordinary circumstances, such as a 
significant impact to that resource'' (75 FR 75628, 75629, Dec. 6, 
2010). CEQ's guidance is consistent with the Postal Service's 
experience with sales of historical properties.
    In a great many instances, the disposal of a historic Postal 
Service property does not result in significant environmental impacts. 
As described in the previous section, the Postal Service, GSA, and USCG 
each consider whether such potential issues exist and whether they 
could be sufficiently alleviated outside of the NEPA process, such as 
through historic preservation covenants. In other words, historic 
status may be a starting point to consideration of ``extraordinary 
circumstances,'' but it is not an immediate EA decision point under the 
regulatory scheme of the GSA, USCG, or USPS. The Postal Service's 
``extraordinary circumstance'' regulations are consistent with those of 
the GSA and USCG in this regard, and the use of those agencies' CATEXs 
as models does not provide a basis for additional changes to other 
aspects of the Postal Service's CATEX regulations.
    One commenter believes that any proposed action to move Postal 
Service activities from a downtown area should be subject to an 
environmental impact statement (EIS). Although this rulemaking's CATEX 
covers proposed actions to dispose of property rather than to move the 
Postal Service's operations from one place to another, both categories 
of decisions and others are subject to the Postal Service's NEPA 
process. Under the Postal Service's longstanding NEPA regulations, an 
EIS does not generally need to be performed for a Postal Service 
action, including a routine transfer of operations, absent 
extraordinary circumstances. See 39 CFR 775.5(a); 40 CFR 1508.27.

Consistency of This NEPA CATEX With National Historic Preservation Act

    Although the National Historic Preservation Act (NHPA) and National 
Register of Historic Places are not immediately relevant to this NEPA 
rulemaking, commenters have discussed their application to federal 
entities' property disposals, particularly the GSA's. Several 
commenters state that the Postal Service must consider a property's 
listing on the National Register of Historic Places, which the Postal 
Service already does as part of its NEPA analysis. Commenters also make 
an effort to distinguish the Postal Service's requisite procedures for 
evaluating potential disposals of historical properties with GSA's.
    As discussed above, the Postal Service already has special 
procedures for reviewing proposed disposals of historic properties 
(Facilities Environmental Guide Handbook RE-6 Sec. Sec.  3-4.1, 3-
4.3.4.4.4), and this rulemaking does not change or otherwise affect 
those procedures or the significance of a property's historic status. 
The Postal Service voluntarily complies with the requirements of 
Section 106 of the NHPA (16 U.S.C. 470f) in making a finding that there 
would be no adverse effects to a historic property as a result of a 
disposal, or if an adverse effect is found, then consulting with the 
requisite parties to develop an agreement to mitigate adverse effects. 
These procedures remain effective notwithstanding this rulemaking, and 
they are generally similar to other Federal entities' corresponding 
procedures. As such, they do not affect the reasonableness of the 
Postal Service's amendment to its NEPA procedures on the basis of GSA's 
model.

The Public Trust Doctrine

    One commenter offered an opinion that the common-law public trust 
doctrine affects the Postal Service's ability to modify a NEPA CATEX. 
While courts have applied the public trust doctrine to natural 
resources (particularly water-related resources), there does not appear 
to be authority for the proposition that the public trust doctrine 
applies to government-owned facilities and property. Such a proposition 
would seem contrary to the long history of disposals of governmental 
property. Nor does the Constitution pose any such limits on Congress's 
powers to provide for the disposal of federal property.
    In fact, the Constitution explicitly vests Congress with the power 
``to dispose of any kind of property belonging to the United States . . 
.

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without limitation.'' Alabama v. Texas, 347 U.S. 272, 273 (1954) (per 
curiam) (internal quotation marks and citation omitted). Congress has 
expressly delegated its disposal powers to the Postal Service. See 39 
U.S.C. 401(5). Thus, even if the public trust doctrine somehow applied 
to the federal government as a general matter, the doctrine still would 
not encumber the Postal Service as a statutory matter. See 39 U.S.C. 
410(a).
    Even if the public trust doctrine had any relevance for disposals 
of government property, the public trust doctrine is a distinct area of 
state law that does not apply to a federal NEPA rulemaking. PPL Mont., 
LLC v. Montana, 132 S. Ct. 1215, 1235 (2012) (emphasizing that the 
public trust doctrine ``remains a matter of state law''). As such, the 
Constitution's Supremacy Clause bars it from applying to the Postal 
Service.

Effect on Public Participation

    One group of commenters asserts that the interim final rule would 
reduce public participation in the facility disposal process at a time 
when there is great national interest in historic Post Offices. 
Adoption of this final rule will have no adverse effect on the existing 
robust avenues for public participation in Postal Service processes for 
disposals of historic properties. The Postal Service, itself a historic 
institution, highly values its historic properties and takes seriously 
its voluntary compliance with sections 106, 110, and 111 of the 
National Historic Preservation Act and the historic preservation 
regulations.
    In particular, with respect to the occasional sale of an historic 
post office, the Postal Service strictly adheres to the section 106 
regulations (36 CFR part 800), which provide a comprehensive, 
consistent, transparent, consultative process. That process requires 
identifying historic properties, assessing the effects of Postal 
Service undertakings and, in consultation with local officials and with 
community input, seeking ways to avoid, minimize or mitigate any 
adverse effects on historic properties. Additionally, for real property 
disposals, under its regulations implementing applicable provisions of 
the Intergovernmental Cooperation Act (39 CFR part 778), the Postal 
Service provides opportunities for consultation by elected officials of 
those state and local governments that would be directly affected by 
the Postal Service's real property disposals.

List of Subjects in 39 CFR Part 775

    Environmental impact statements.

    For the reasons stated in the preamble, 39 CFR part 775 is amended 
as follows:

PART 775--NATIONAL ENVIRONMENTAL POLICY ACT PROCEDURES

0
1. The authority citation for 39 CFR part 775 continues to read as 
follows:

    Authority: 39 U.S.C. 401; 42 U.S.C. 4321 et seq.; 40 CFR 1500.4.


0
2. In Sec.  775.6, paragraph (e)(8) is revised to read as follows:


Sec.  775.6  Categorical exclusions.

* * * * *
    (e) * * *
    (8) Disposal of properties where the size, area, topography, and 
zoning are similar to existing surrounding properties and/or where 
current and reasonable anticipated uses are or would be similar to 
current surrounding uses (e.g., commercial store in a commercial strip, 
warehouse in an urban complex, office building in downtown area, row 
house or vacant lot in an urban area).
* * * * *

Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
[FR Doc. 2014-13418 Filed 6-9-14; 8:45 am]
BILLING CODE 7710-12-P