[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 3410-16-P