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ENVIRONMENTAL PROTECTION AGENCY

Western Area Power Administration

CFR Citation: 40 CFR Part 6

EPA ID: [EPA-HQ-OECA-2005-0062; FRL-8467-5]

RIN ID: RIN 2020-AA42

NOTICE: Part III

DOCUMENT ACTION: Final Rule.

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

DATES: This final rule is effective on October 19, 2007.

DOCUMENT SUMMARY: The Environmental Protection Agency (EPA or Agency) is amending its procedures for implementing the requirements of the National Environmental Policy Act of 1969 (NEPA). This also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114, ``Environmental Effects Abroad of Major Federal Actions.''

This rule amends EPA's NEPA implementing procedures by: consolidating and standardizing the procedural provisions and requirements of the Agency's environmental review process under NEPA; clarifying the general procedures associated with categorical exclusions, consolidating the categories of actions subject to categorical exclusion, and amending existing and adding new categorical exclusions; consolidating and amending existing and adding new extraordinary circumstances; consolidating and amending the listing of actions that generally require an environmental impact statement; clarifying the procedural requirements for consideration of applicable environmental review laws and executive orders; and incorporating other revisions consistent with the Council on Environmental Quality's regulations (CEQ Regulations).

SUMMARY: Environmental Protection Agency,

SUPPLEMENTAL INFORMATION

The contents of this preamble are organized according to the following outline:
I. General Information

A. Does This Rule Apply to Me?

B. Statutory Authority

C. Background

D. Exemptions From NEPA for Certain EPA Actions

E. EPA's Voluntary NEPA Policy and Procedures

F. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection
II. Summary of This Rule

III. Responses to Comments

A. Comments Relating to the Scope of the Regulations

B. Comments Relating to Categorical Exclusions (CEs)

C. Comments Relating to Extraordinary Circumstances (ECs)

D. Comments Relating to the NEPA Process
IV. Statutory and Executive Order Reviews

A. Executive Order 12866

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution and Use

I. National Technology Transfer and Advancement Act of 1995

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations

K. Congressional Review Act
I. General Information

A. 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) or Executive Order 12114, and certain grant and permit applicants who must submit environmental information documentation to EPA for their proposed projects.

EPA's Procedures for Implementing NEPA. Compliance with these regulations is the responsibility of EPA's Responsible Officials. Certain procedures in these NEPA regulations require those defined as applicants (that is, grant and permit applicants) to provide environmental information for EPA's use in its environmental review process.

These regulations consolidate and standardize the environmental review process applicable to all EPA proposed actions subject to NEPA. These regulations supplement and should be used in conjunction with the governmentwide CEQ NEPA Regulations (40 CFR parts 1500 through 1508).

EPA's Procedures for Implementing Executive Order 12114. Compliance with these procedures is the responsibility of EPA's Responsible Officials. For applicantproposed actions, applicants may be required to provide environmental information for EPA's use in its environmental review process. EPA's Executive Order 12114 implementing procedures ensure that environmental information is available to the Agency's decisionmakers and other appropriate Federal agencies and officials for proposed actions subject to Executive Order 12114.

This rule also includes minor, technical amendments to the Agency's procedures for implementing Executive Order 12114 (42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR 1979, Comp., p. 356). EPA actions typically subject to Executive Order 12114 include major EPA actions that affect the environment of a foreign nation or the global commons and may include: Major research or demonstration projects, ocean dumping activities carried out under section 102 of the Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 et seq.), and major permitting or licensing of facilities by EPA (such as EPAissued permits for hazardous waste treatment, storage, or disposal facilities under section 3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925), National Pollutant Discharge Elimination System permits under section 402 of the Clean Water Act (33 U.S.C. 1342), and prevention of significant deterioration approvals under Part C of the Clean Air Act (42 U.S.C. 7470 et seq.)).

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To determine whether a project would be subject to either of these procedures, carefully examine the applicability criteria in Sec. 6.101 and Subpart C of the NEPA implementing procedures, and Sec. 6.401 of the Executive Order 12114 implementing procedures in this proposed rule. If there are questions regarding the applicability of these procedures to a particular entity, consult the person listed in the preceding ``FOR FURTHER INFORMATION CONTACT'' section of this Preamble. B. 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 decisionmaking processes are consistent with NEPA.

Executive Order 12114, ``Environmental Effects Abroad of Major Federal Actions,'' (see 46 FR 3364) is the authority and basis for EPA's policy, criteria, and procedures contained in the portion of today's proposed rule entitled ``Assessing the Environmental Effects Abroad of EPA Actions.''

C. Background

The Environmental Protection Agency initially established its NEPA regulations as 40 CFR Part 6 (Part 6), Subparts A through H on April 14, 1975 (see 40 FR 16823). Subpart I was added on January 11, 1977 (see 42 FR 2450). On November 29, 1978, the CEQ promulgated regulations establishing uniform federal procedures for implementing NEPA (see 43 FR 55978). Section 102 of NEPA and the CEQ Regulations require federal agencies to adopt appropriate NEPA procedures to supplement those regulations. As a result, EPA amended its NEPA regulations on November 6, 1979, to make them consistent with the CEQ Regulations (see 44 FR 64177).

Under the Agency's 1979 Part 6 amendments, Subparts A through D described general NEPA procedures for preparing environmental reviews applicable to all EPA NEPA actions and established certain categorical exclusions. Subpart A contained an overview of EPA's NEPA regulations, including environmental impact statement (EIS) requirements for EPA legislative proposals and requirements for environmental information documents (EIDs) to be submitted to EPA by applicants, grantees, or permitees as required in Subparts E through I. Subpart B described the requirements for the content of an EIS prepared pursuant to Subparts E through I. Subpart C described the requirements for coordination of applicable environmental laws and certain executive orders with the environmental review procedures. It provided a brief recitation of the provisions of those laws or executive orders and EPA implementing procedures. Subpart D described the public information requirements to be undertaken in conjunction with the environmental review requirements under Subparts E through I. Subparts E through I established specific criteria for conducting environmental reviews for particular types of actions and categorical exclusions applicable to those actions. Specifically, Subpart E established NEPA environmental review procedures for the Wastewater Treatment Construction Grants Program of the Clean Water Act; Subpart F for the issuance of new source NPDES permits; Subpart G for research and development program actions; Subpart H for solid waste demonstration projects; and Subpart I for EPA actions for construction of special purpose facilities or facility renovations. EPA's ``Statement of Procedures on Floodplain Management and Wetlands Protection,'' dated January 5, 1979, was included as Appendix A to clarify the effective date and to emphasize the importance of this Statement of Procedures.

In 1981, Subpart J, ``Assessing the Environmental Effects Abroad of EPA Actions,'' was added as EPA's general policy, criteria, and procedures for implementing Executive Order 12114, ``Environmental Effects Abroad of Major Federal Actions'' (see 46 FR 3364). Executive Order 12114 does not impose NEPA compliance requirements on Federal agencies, rather it ``furthers the purpose'' of NEPA and identifies the documents, including environmental impact statements (EISs) and environmental assessments (EAs), to be used when conducting assessments under Executive Order 12114.

In 1982, the Agency revised its Part 6 NEPA regulations by removing CEQ from the consultation process on requests to segment wastewater treatment facility construction grant projects (see 47 FR 9831). In 1983, EPA revised the categorical exclusions and the criteria for not granting an exclusion, and corrected a factual error on the responsibility for preparing a final EA (see 48 FR 1012).

In 1985, the Agency promulgated procedural amendments and minor substantive amendments to its Part 6 NEPA regulations to accommodate changes in EPA's regulations for the construction grants program found at 40 CFR Part 35 (see 50 FR 26310). The modifications in the construction grants program changed the process that EPA grant recipients followed in planning and building wastewater treatment facilities. The amendments to Subpart E and related sections of the EPA NEPA regulations streamlined and clarified the criteria and process for an environmental review and for preparing an EIS, including partitioning of the review process and the public involvement requirements. These amendments also included Office name and technical changes to reflect an Agency reorganization.

In 1986, EPA amended its Part 6 NEPA regulations to clarify and streamline procedures for partitioning and reevaluating environmental reviews, making categorical exclusion (CE) determinations, providing for public participation, and producing and distributing environmental review documents; and to make various technical changes including Office name changes due to reorganizations.

In 1991, EPA amended Subpart G of its Part 6 NEPA regulations by adding categorical exclusions and a list of projects that normally result in preparation of EAs; revising the criteria used to determine whether preparation of an EIS is required; revising the provision directing coordination, where feasible, with other EPA program reviews; and clarifying the NEPA review process for Office of Research and Development actions (see 56 FR 20541). In addition, EPA amended Subpart D by eliminating the requirement for public notice of categorical exclusion determinations for all EPA programs except the Wastewater Treatment Construction Grants Program.

In 1993, EPA amended its Part 6 NEPA regulations to address the requirement that EPA actions conform to any air quality State implementation plan, and to clarify that air pollution control requirements need to be considered when performing NEPA reviews for wastewater treatment works (see 58 FR 63214).

D. Exemptions From NEPA for Certain EPA Actions

Certain EPA actions are exempt from the procedural requirements of NEPA, including the CEQ Regulations. Congress has provided specific statutory exemptions for certain EPA actions taken under the Clean Water Act (CWA) and all EPA actions taken under the Clean Air Act (CAA). Specifically,
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under CWA Section 511(c)(1), EPA is exempt from preparing EISs for all actions taken under the CWA except for issuance of NPDES permits under CWA Section 402 for ``new sources'' as defined in Section 306, and for Federal financial assistance provided for assisting construction of publicly owned treatment works under CWA Section 201 (33 U.S.C. 1371(c)). Under the Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C. 793(c)(1)), all actions taken under the CAA are deemed not to be major federal actions significantly affecting the environment.

Further, the courts have exempted certain EPA actions from the procedural requirements of NEPA through the functional equivalence doctrine. Under the functional equivalence doctrine, courts have found EPA to be exempt from the procedural requirements of NEPA for certain actions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and the Marine Protection, Research, and Sanctuaries Act (MPRSA). The courts reasoned that EPA actions under these statutes are functionally equivalent to the analysis required under NEPA because they are undertaken with full consideration of environmental impacts and opportunities for public involvement. See, e.g., EDF v. EPA, 489 F.2d 1247 (D.C. Cir. 1973) (FIFRA); State of Alabama v. EPA, 911 F. 2d 499 (11th Cir. 1990) (RCRA); Warren County v. North Carolina, 528 F. Supp. 276 (E.D. N.C. 1981) (TSCA); Western Nebraska Resources Council v. U.S. EPA, 943 F.2d 867 (8th Cir. 1991) (SDWA); Maryland v. Train, 415 F. Supp. 116 (D. Md. 1976) (MPRSA).

Agency actions exempt from the requirements of NEPA remain exempt under this rule. If a question arises regarding the applicability of the NEPA requirements to certain proposed actions, the Responsible Official should consult with the NEPA Official and the Office of General Counsel.

E. EPA's Voluntary NEPA Policy and Procedures

In 1974, EPA Administrator Russell Train determined that the Agency could voluntarily prepare EISs for certain regulatory activities that were exempt from NEPA. In 1998, Administrator Carol Browner amended this policy to permit the preparation of nonEIS NEPA documents for certain EPA regulatory actions. The Agency's current ``Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act (NEPA) Documents'' (see 63 FR 58045) sets out the policy and procedures EPA uses when preparing environmental review documents under the Voluntary NEPA Policy. This rule does not make any changes to the voluntary NEPA policy and procedures. However, the rule can serve as a framework for the preparation of voluntary NEPA documents.
F. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection

On January 5, 1979, EPA issued its Statement of Procedures on Floodplain Management and Wetlands Protection to implement Executive Orders 11988 (Floodplain Management) and 11990 (Protection of Wetlands); the Statement had been included in 40 CFR Part 6 as Appendix A. As part of this rulemaking, EPA is removing the Statement as an appendix to the rule. The Statement remains in effect, and can be viewed on EPA's NEPA Web site, at: http://www.epa.gov/compliance/resources/policies/nepa/floodplainmanagementwetlandsstatementpg.pdf .

II. Summary of This Rule

On December 19, 2006, EPA published a Federal Register notice seeking comment on a proposed rule that would amend its regulations for implementing the NEPA and EO 12114.

The Agency is amending its procedures for implementing the requirements of NEPA. The rule amends EPA's 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. These regulations supplement and are to be used in conjunction with the CEQ 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 rule includes minor, technical amendments to EPA's procedures for implementing the Order. These procedures further the purpose of NEPA and provide that EPA may be guided by the CEQ Regulations and EPA's NEPA implementing regulations to the extent they are applicable. Therefore, when EPA conducts an environmental assessment pursuant to its Executive Order 12114 procedures, the Agency generally follows its NEPA procedures (unless the assessment process is addressed in other EPA programs). EPA's Executive Order 12114 implementing procedures ensure that environmental information is available to the Agency's decisionmakers and other appropriate Federal agencies and officials for actions subject to Executive Order 12114.

After considering comments made on the December 19, 2006 proposed rule, EPA is finalizing the rule substantially as proposed, with some minor modifications. Two changes in the rule were made in response to public comment. One change was to clarify that only major Federal actions require the preparation of an EIS (this change can be found at Sec. 6.207(a) of the rule). Another clarified the role of cooperating agencies in the preparation of EPA NEPA documents (found at Sec. 6.202(a)).

Other changes were made by EPA to clarify the rule's applicability, clarify the CE for on site replacement systems, and improve the overall flow of the regulation. These changes can be found at Sec. Sec. 6.101(a), 6.101(b), 6.203(b), 6.204(a)(1)(iii) and 6.210. In Sec. 6.101(a), the specific reference to the STAG account was eliminated to avoid confusion about the need for NEPA compliance for all STAG account activities. In this regard, the text was revised to indicate that the rule applies to certain grants awarded to projects authorized through the Agency's annual Appropriation Acts, which includes special grants for municipal wastewater treatment and water supply projects, projects funded through the USMexican Border program, and projects funded through the Indian Environmental General Assistance Program. The other change regarding the rule's applicability was to move Sec. 6.101(f) to Sec. 6.101(b), to improve the flow of the section, and to clearly state that this rule does not apply to actions that are statutorily exempt from NEPA. The paragraph at Sec. 6.203(b) was separated into two paragraphs: one for the standard procedure, and one for deviations from this procedure under
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the appropriate circumstances. This also demonstrates that even under an abbreviated comment period, there is still a need to circulate the FONSI/EA for public review. The additional language is meant to improve the overall flow of the section. Additionally, the text of Sec. 6.204(a)(1)(iii) has been clarified. Lastly, Sec. 6.210 has been restructured to clarify that consultation with CEQ must occur prior to the approval of any alternate arrangements for emergency circumstances. III. Responses to Comments

Comments received expressed general support for the revisions to the rule; however, some comments raised concerns regarding specific aspects of the rule. The comments fell into the following four areas: the scope of the rule; categorical exclusions; extraordinary circumstances; and the NEPA process. EPA's responses to the comments have been grouped into these four areas.

A. Comments Relating to the Scope of the Regulations

Comment: One commenter asked that the EPA not weaken the Clean Water Act.

EPA's Response: EPA appreciates the commenter's concern. The purpose of this rule, however, is to revise and consolidate EPA's NEPA implementing procedures. These regulations are strictly procedural; they set out the procedures EPA follows to comply with NEPA. They have no effect on EPA's authorities under the Clean Water Act, nor do they weaken EPA's implementation of the Clean Water Act.

Comment: A commenter asked that applicants be specifically referenced in various sections of the rule because of their integral part in the process.

EPA's Response: EPA agrees that applicants have an integral role in the NEPA environmental review process. EPA believes, however, that it is unnecessary to include additional specific references to applicants. As the commenter acknowledged, the proposed regulations already specifically include applicants. For example, Sec. 6.103(b)(3) requires the Responsible Official to ``ensure to the extent practicable, early and continued involvement of interested federal agencies, state and local governments, federallyrecognized Indian tribes, and affected applicants in the environmental review process.'' (emphasis added) Applicants also are specifically identified in Subpart C ``Requirements for Environmental Information Documents and Third Party Agreements.'' EPA believes that inclusion of applicants in the broad definition of the public (see Sec. 6.203(a)(2)), as well as the identification of applicants in specific sections and subsections of the proposed rule, provides applicants with sufficient and appropriate participation in the environmental review process.

Comment: Another commenter asked that EPA define the term ``major Federal action'' and clarify that only major federal actions trigger the requirement to prepare an environmental impact statement.

EPA's Response: EPA agrees that the proposed rule may have been unclear because it used the term ``major action'' instead of ``major federal action.'' Therefore, in response to this comment, EPA modified Sec. 6.207(a) of the rule to clarify that an EIS is required only for its major federal actions significantly affecting the quality of the human environment. In regard to defining the term ``major federal action,'' EPA does not agree that the term should be defined in EPA's regulations. The CEQ Regulations, which EPA is adopting through this rule, define the term ``major federal action.'' (See 40 CFR 1508.18.) Since EPA is adopting the CEQ Regulations, it is not necessary for EPA's regulations to define the term.

Comment: A tribal commenter asserted that the rule is inconsistent with EPA's trust obligation to protect Indian country because the rule may have negative impacts on the Tribe's efforts to protect water quality. In particular, the commenter claims that the rule ``compromises the Tribe's ability to certify'' that certain discharges will meet tribal water quality standards.

EPA's Response: EPA recognizes the federal government's trust responsibility to federallyrecognized Indian tribes that arises from Indian treaties, statutes, executive orders, and the historical relations between the United States and Indian tribes. This rule complies with NEPA and other applicable federal statutes and regulations; therefore, it meets the federal trust responsibility and does not negate or diminish that responsibility.

The commenter's assertion regarding the rule compromising the Tribe's ability to certify that certain discharges will meet tribal water quality standards and to protect water quality mischaracterizes the effect of the rule. The rule does not alter or limit any authority or ability the Tribe has under Tribal law, federal law, or any agreement to protect water quality. Moreover, in this case, the Tribe's approval for treatment in the same manner as a state for the Clean Water Act Water Quality Standards and Certification programs and federal approval of the Tribe's water quality standards enhances the Tribe's ability to protect its waters. Under Section 401 of the Clean Water Act, no federal permit can be issued to approve any activity until the Tribe certifies that any discharge under the permit will comply with applicable tribal water quality standards. Also, EPA regulations require that any permit for a discharge upstream from the Tribe's reservation must include conditions that ensure compliance with applicable downstream water quality standards.

B. Comments Relating to Categorical Exclusions (CEs)

Comment: Some commenters expressed concern about the new CE that is established at Sec. 6.204(a)(1)(iv) for the reissuance of new source NPDES permits because the commenters believe it would eliminate the need for EPA to comply with NEPA for NPDES permits.

EPA's Response: It appears that the commenters mistakenly believe that NEPA compliance is required for all NPDES permits. In point of fact, pursuant to section 511(c) of the Clean Water Act, 33 U.S.C. 1371(c), NEPA compliance is required only for NPDES permits for the discharge of any pollutant by a ``new source,'' which is defined in the Clean Water Act as a source that is subject to promulgated new source performance standards (see, 33 U.S.C. 1316(a)(2)). Thus, NPDES permits for sources other than ``new sources'' are not subject to NEPA. It should also be noted that NEPA applies only to federal actions. The issuance of NPDES permits by an EPAauthorized state is a state, not federal, action and is, thus, not subject to NEPA. Currently, most states are authorized and, thus, the bulk of the NPDES permits issued in the United States are not subject to NEPA and the new CE has no effect on those actions. Those state permit actions, however, will continue to be subject to the environmental and public review procedures established for those state programs.

EPA does not agree that the use of a CE eliminates the need for EPA to comply with NEPA. A CE, as defined by the CEQ Regulations, is a ``category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.'' 40 CFR 1508.4. Accordingly, the establishment and proper use of a CE achieves NEPA
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compliance. The rule requires that the Responsible Official determine that the proposed action first fits within the category of actions described by the CE, and then determines that the proposed action does not involve any extraordinary circumstances. Sec. 6.204(a). Further, the decision that an action is eligible to be excluded from further NEPA review based on this CE is required to be documented in writing, the documentation must include an explanation of why no extraordinary circumstances apply to the action, and the documentation must be made available to the public on request. Sec. 6.204(a)(1).

Finally, not all NPDES new source permits would qualify for this CE. First, the permit must be a reissuance, not a firsttime permit. Firsttime NPDES new source permits issued by EPA are reviewed and the environmental effects are considered in either an EA or EIS. Second, the Responsible Official must determine that the conclusions of the NEPA document for the original permit are still valid. Third, the Responsible Official must determine that the reissuance of the permit will not result in degradation of the receiving waters. Lastly, the permit conditions in the reissued permit must be the same as those in the original permit or more environmentally protective. Based on EPA's experience, EPA believes that the reissuance of permits that meet all of these conditions will not have a significant impact on the quality of the human environment.

Comment: One commenter expressed the opinion that expanding the list of CEs reduces public participation in the NEPA process.

EPA Response: EPA acknowledges that the use of a CE may reduce opportunities for public participation on that specific action. However, the public has the opportunity to comment on new CEs when they are developed. This provides a better use of agency resources for the public benefit than repeatedly focusing resources on environmentally insignificant actions. Moreover, other aspects of the approval of specific actions may provide an opportunity for public input independent from the NEPA process.

Comment: One commenter expressed concern that relying on past NEPA documents risks compounding errors or oversights in prior environmental review.

EPA Response: EPA's experience with relying on past NEPA documents is that when the action in question is a continuation and the conclusions of the earlier NEPA document regarding the lack of significant impacts have been reviewed and determined to still be valid, the continuation of that action will not cause significant impacts. The only CE that requires a reevaluation of a past NEPA document and decision is the new CE that is established at 40 CFR 6.204(a)(1)(iv) for the reissuance of new source NPDES permits. As noted in the Supporting Statement for this rule, EPA's experience with such actions is that where the original NEPA document projected that the action would not cause significant environmental effects, it was determined that the continuation of the discharge would not degrade the receiving waters and that the permit conditions do not change or are more environmentally protective, the reissuance of the respective new source NPDES permit does not result in significant impacts. It should also be noted that the use of this CE will require additional evaluation beyond an evaluation of the action for consistency with a prior NEPA decision. Accordingly, EPA believes that the review process that must be employed before approval of this CE is adequate to ensure that past errors/oversights (assuming there are any) will not be repeated.

Comment: One commenter requested clarification about whether NPDES construction general permits are subject to NEPA and recommended that EPA add the following CE to the regulations: ``Residential construction undertaken in accordance with the environmental protection requirements of a NPDES construction general permit.'' The commenter also stated that EPA's economic analysis of the impact of the rule on small businesses, pursuant to the Regulatory Flexibility Act (RFA), did not include consideration of the potential number of affected small businesses that would require permit coverage under the construction general permit.

EPA Response: EPA believes that there is no need to add the recommended CE into the rule because NPDES construction general permits are not new source permits. Under section 511(c) of the Clean Water Act, 33 U.S.C. 1371(c), NEPA compliance is required only for NPDES permits for the discharge of any pollutant by a ``new source,'' which is defined in the Clean Water Act as a source that is subject to promulgated new source performance standards (see, 33 U.S.C. 1316(a)(2)). Since there are no new source performance standards for construction discharges, NEPA compliance is not required for these permit actions.

As to the comment on the RFA economic analysis, as noted above, construction general permits are not new source NPDES permits and, therefore, are not subject to EPA NEPA regulations. Therefore, there is no need to include small businesses that apply for such permits as part of the regulated public subject to this rule.

Comment: One commenter questioned why the revised rule did not propose CEs for EPA actions under the Resource Conservation and Recovery Act, Superfund, and the Clean Air Act.

EPA Response: EPA actions under the Clean Air Act are statutorily exempt from NEPA. See, 15 U.S.C. 793(c)(1). Additionally, the decision making processes for EPA actions under the Resource Conservation and Recovery Act and Superfund are considered to be the functional equivalent of NEPAsee Section I.D above. Accordingly, CEs are unnecessary for EPA actions under these programs.

Comment: A commenter expressed the opinion that the CE process should allow for projectspecific flexibility.

EPA Response: EPA agrees with this comment and believes that the CE process in the rule allows for the most flexibility possible.

Comment: Several commenters expressed the opinion that the CEs established in the rule should include activities that create temporary disturbances with minimal impacts and whose impacts are already relatively wellknown and for which mitigation measures are well established.

EPA Response: EPA appreciates this comment, and believes that the CEs established in the rule meet these general criteria for the actions covered. However, EPA believes that establishing CEs for the activities described in the comment would be too broad and too subjective; EPA does not have sufficient historical support for such broad CEs for all of its programs. Further, it is unlikely that such CEs could be approved without some level of environmental review on the individual projects, which would defeat the intent of establishing CEs in the first place.

C. Comments Relating to Extraordinary Circumstances (ECs)

Comment: One commenter objected to the broad nature of the extraordinary circumstances, and the similarity between the extraordinary circumstances, which, if present, would prohibit the use of a CE, and the list of criteria that normally require the preparation of an EIS.

EPA's Response: EPA believes that the extraordinary circumstances, which require determinations regarding the proximity of environmental/ natural features in the project area, and/or the application of professional judgment
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about the severity of an action's potential environmental effects are not too broad. Moreover, as required by the CEQ Regulations, when establishing a CE, agencies must determine whether the actions in question result in significant effects on the quality of the human environment either individually or cumulatively. The CEQ regulations also require that each agency's NEPA procedures include circumstances in which ``a normally excluded action may have a significant environmental effect.'' 40 CFR 1508.4. Accordingly, EPA believes that it is essential that these two lists parallel each other.

Comment: Several commenters believe that the Agency will not have enough information to make an informed decision regarding the applicability of extraordinary circumstances without input from the public.

EPA Response: EPA appreciates this concern, and has included an extraordinary circumstance that requires the evaluation of public controversy about an action's potential environmental effects40 CFR 6.204(b)(8). Of the remaining extraordinary circumstances, many relate to the presence of environmental/natural features (endangered species, historic properties, and farmland) in the project area. The rest require the application of routine professional judgment in making preliminary determinations about the potential severity of the action's environmental effects. EPA does not believe that public input is needed to make these routine determinations.

Comment: One commenter expressed concern about the extraordinary circumstance in Sec. 6.204(b)(7), which prohibits the use of a CE if the action will likely have a significant effect on land use patterns or be inconsistent with an approved land use plan because the commenter believes the criterion has little to do with NEPA, and is outside of EPA's jurisdiction.

EPA Response: EPA disagrees with this comment because federal actions that significantly alter land use patterns or are inconsistent with approved land use plans can result in significant environmental effects. Moreover, this criterion is consistent with CEQ Regulations. See 40 CFR 1502.16.

Comment: One commenter expressed concern about the extraordinary circumstance in Sec. 6.204(b)(8), which prohibits the use of a CE if the action is expected to cause significant public controversy about a potential environmental impact because the commenter believes public controversy alone (i.e., in the absence of an environmental impact) should not prohibit the use of a CE.

EPA Response: EPA agrees that public controversy alone should not prohibit the use of a CE. As written, this extraordinary circumstance is limited to significant public controversy about a potential environmental effect. EPA believes it is appropriate to prohibit the use of a CE if there is significant public controversy regarding a potential environmental impact. Moreover, this criterion is consistent with CEQ Regulations at 40 CFR 1508.27(b)(4), which state that in determining whether an action is significant, the agency is to consider `` the degree to which the effects on the quality of the human environment are likely to be highly controversial.''

Comment: One commenter expressed concern about the extraordinary circumstance in Sec. 6.204(b)(10), which prohibits the use of a CE if the action may conflict with federal, state, or local government, or federallyrecognized Indian tribe environmental, resource protection, or landuse laws or regulations because the commenter believes that the criteria have little to do with NEPA, and are outside of EPA's jurisdiction.

EPA Response: EPA disagrees with this comment because federal actions that are inconsistent with environmental, resource protection, or landuse laws or regulations, can, regardless of the source of these requirements, result in significant environmental effects. Therefore, it is appropriate to prohibit the use of a CE in such cases. Moreover, this criterion is consistent with CEQ Regulations.

D. Comments Relating to the NEPA Process

Comment: One commenter suggested that the proposed rule be revised to provide for public hearings if an interest is expressed.

EPA Response: EPA appreciates the comment and agrees that public participation in the NEPA process is important, but does not agree that the rule should require public hearings. The proposed rule requires the Responsible Official to ``make diligent efforts to involve the public * * * in the preparation of [environmental assessments] and
[environmental impact statements] consistent with 40 CFR 1501.4 and 1506.6 and applicable EPA public participation regulations.'' Section 6.203(a)(2). The Responsible Official also is required to ``use appropriate communication procedures to ensure meaningful public participation throughout the NEPA process.'' Section 6.203(a)(5). Further, in preparing in EIS, the Responsible Official may hold one or more scoping meetings, and public meetings or hearings on the draft EIS. Section 6.203(c)(3)(iii) and (iv). Thus, EPA does not believe that the rule in any way reduces opportunities for public participation in the environmental review process. Rather, it provides the Responsible Official the flexibility to use the most appropriate public participation process considering both the unique circumstances of the project and any applicable EPA public participation requirements. This approach is consistent with CEQ Regulations, which require the agency to ``make diligent efforts to involve the public in preparing and implementing their NEPA procedures,'' 40 CFR 1506.6(a), but do not prescribe how that public participation is to be carried out.

Comment: A commenter expressed support for the Emergency Circumstance provision in the rule, but urged EPA to expand the authority of the Responsible Official.

EPA Response: EPA appreciates the comment, but does not agree that the Responsible Official should be given more authority because the rule gives the responsible Official, in consultation with the NEPA Official and CEQ, the authority necessary to properly address NEPA compliance for emergency situations. The authority EPA is providing to the Responsible Official is consistent with CEQ Regulations, which require EPA to consult with CEQ about alternative arrangements for emergency circumstances. See 40 CFR 1506.11.

Comment: A commenter asked EPA to set page and time limits for NEPA documents and processes, respectively.

EPA Response: While EPA appreciates the comment, we believe that it is not necessary or appropriate for this rule to set time or page limits. CEQ Regulations provide general guidelines for time and page limits, but the nature of the specific environmental issues evaluated in NEPA documents appropriately affects their length and preparation time. Generally, the depth of analysis should correlate to the severity and probability of a proposed action's potential environmental effects. Since the purpose of a NEPA environmental review is to thoroughly and appropriately analyze the environmental impacts of a federal action, it would be counterproductive to establish mandatory time or page limits.

Comment: A commenter asked that NEPA review be limited to economically and technically feasible alternatives.

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EPA Response: EPA does not agree that the NEPA review should be limited to economically and technically feasible alternatives. While these are two important factors, they are not the only ones to be considered in establishing the range of reasonable alternatives for NEPA analyses. Indeed, not all economically and technically feasible alternatives that meet the purpose and need are reasonable. Other factors (e.g., environmental soundness, compliance with statutory and regulatory requirements, and public concern) must also be considered when determining whether alternatives are reasonable under NEPA.

Comment: One commenter suggested that the rule clarify the meaning of cumulative impacts that are examined in an EIS.

EPA Response: EPA appreciates the comment, but does not believe that clarification of the meaning of cumulative impacts is necessary. The reference to cumulative impacts in the rule is consistent with accepted NEPA practice, as well as the definition of cumulative impacts in Sec. 1508.7 of CEQ Regulations, which EPA is adopting through this rulemaking (see Sec. 6.100(b)). Moreover, both CEQ and EPA have issued considerable guidance on the definition of cumulative impacts and techniques for assessing them. Accordingly, EPA believes that it is not necessary to expand the definition of cumulative impacts in this rule.

Comment: One commenter expressed concern because the proposed rule appeared to increase the authorities of cooperating agencies to require their approval in the preparation of EPA NEPA documents prior to issuance.

EPA Response: EPA agrees that the proposed rule implied that cooperating agencies would always assume a greater role in preparing EPA NEPA documents than is envisioned by EPA or the CEQ Regulations (40 CFR 1501.6). As acknowledged by those regulations, and demonstrated by NEPA practice, cooperating agencies may jointly prepare the NEPA document, or may focus their involvement to those specific issues on which they have jurisdiction or expertise. Accordingly, the rule, at 40 CFR 6.202(a) has been revised to clarify the role of cooperating agencies in the development of EPA NEPA documents.

Comment: One commenter suggested that EPA use the phrase ``significant adverse effect'' as the threshold for requiring an EIS.

EPA Response: EPA does not agree that the threshold for requiring an EIS should be limited to ``significant adverse effects.'' Restricting the threshold of significant impacts (that would require the preparation of an EIS) to only adverse effects would result in limiting analyses, which could result in overlooking and/or disregarding effects where there is controversy over the ``beneficial'' or ``adverse'' nature of the environmental consequence. This approach is consistent with 40 CFR 1508.27(b)(1).
IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a ``significant regulatory action.'' Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and changes that were made in response to OMB recommendations have been documented in the docket for this action.

In addition, EPA prepared an analysis of the costs and benefits associated with this action. A copy of the analysis is available in the docket for this action, and the analysis is briefly summarized here. The total annual public reporting and recordkeeping burden for this collection of information is estimated at 48,147 hours and $3,823,740 for contractor hours and costs, direct labor hours and costs, and O&M costs. The hour and cost estimates reflect the annual preparation of documentation for an anticipated 312 applicantproposed projects that may be documented with a CE, or an EA/FONSI, or an EIS/ROD. B. Paperwork Reduction Act

The Office of Management and Budget (OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 20200033.

EPA collects information from certain applicants as part of the process of complying with either NEPA or Executive Order 12114. EPA's Executive Order 12114 procedures further the purpose of NEPA and provide that EPA may be guided by NEPA procedures to the extent they are applicable. Therefore, when EPA conducts an environmental assessment pursuant to its Executive Order 12114 procedures, the Agency generally follows its NEPA procedures. For this ICR, applicantproposed projects subject to either NEPA or Executive Order 12114 (and that are not addressed in other EPA programs' ICRs), are addressed through the NEPA assessment process. Those subject to the rule include EPA employees who must comply with NEPA and certain grant and permit applicants who must submit environmental information to EPA for their proposed projects.

The NEPA review for a project may result in a categorical exclusion (CE), or an EA documented with a finding of no significant impact (EA/ FONSI), or an EIS documented with a record of decision (EIS/ROD). (EPA assumes a project may be documented with a CE only for granteeproposed projects. EPA does not anticipate that an initial new source NPDES permit application would be documented with a CE.) For any specific project, only one of these levels of documentation is generally prepared. Applicants must submit an environmental information document (EID) to EPA as part of the environmental review process, unless the applicant submits a draft EA or a draft EIS and supporting documents. Applicants may prepare and submit the information directly, or may enter a thirdparty contract agreement with EPA for preparation of an EA or EIS and supporting documentation. For purposes of determining the maximum costs to applicants for this ICR, EPA assumed that grant and permit applicants would expend time and contractor costs to submit: (1) Information to support application of a CE with environmental information prepared directly by the applicant's contractor; or (2) a draft EA and supporting documents prepared directly by the applicant's contractor; or (3) a draft and final EIS and supporting documents prepared by the applicant's contractor under a thirdparty contract agreement with EPA. Based on EPA's experience, EPA anticipates there will be approximately 300 grantee projects annually with about 60% of these projects documented with a CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one project (less than one percent of the total annual grantee projects) will have an EIS/ROD completed during the 3year period of this ICR. For permit applicants, EPA assumes there will be approximately 12 projects annually with about 11 of the projects documented with an EA/FONSI, and one project will have an EIS/ ROD completed. None will be documented with a CE. EPA estimated the onetime costs for applicants to prepare the environmental
documentation by including contractor hours and costs, direct labor hours and costs, and O&M for documentation submitted to EPA to support a CE determination, or an EA/FONSI, or an
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EIS/ROD. For a grantee, EPA estimates an applicant's onetime costs for submitting environmental information will be: 45 hours and $3,292 for CE documentation, or 260 hours and $18,340 for EA/FONSI documentation, or 2,840 hours and $324,480 for EIS/ROD documentation. For a permit applicant, EPA estimates an applicant's onetime costs for submitting environmental information will be: 460 hours and $53,940 for EA/FONSI documentation, or 2,840 hours and $328,880 for EIS/ROD documentation. These figures may vary depending on the complexity of issues associated with the project and the availability of relevant information, particularly for EISs. EPA believes the calculations for this ICR are representative of most projects.

For purposes of this ICR, the total annual public reporting and recordkeeping burden for this collection of information is estimated at 48,147 hours and $3,823,740 for contractor hours and costs, direct labor hours and costs, and O&M costs. This burden reflects the annual submission of documentation for an anticipated 312 applicantproposed projects that may be documented with a CE, or an EA/FONSI, or an EIS/ ROD. Over the 3year period of this ICR, EPA anticipates 937 applicant proposed projects with a 3year total burden estimate of 144,440 hours and $11,471,220. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond, to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. In addition, EPA is amending the table in 40 CFR Part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any notforprofit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives ``which minimize any significant economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

The environmental information submitted by an applicant under the rule is onetime only for EPA actions subject to NEPA based on applicant proposals; i.e., actions proposed by grantees seeking funding assistance from EPA or for an NPDES permit application initiated by the permit applicant. In either case, EPA assumes the action will directly benefit the applicant (such as a grantee seeking STAG funding for renovation of a community drinking water system, or a permit applicant seeking an NPDES permit from EPA to further the applicant's business interests). Nonetheless, if the applicant cannot afford to provide the required environmental information to EPA, then EPA would undertake the environmental review without input from the applicant. (Applicants would normally be requested to demonstrate financial hardship, including inability to provide the requested environmental information.) Grantees may be granteligible for certain costs associated with providing environmental information to EPA; permit applicants are not eligible for EPA financial assistance. Further, EPA has attempted to reduce the cost on all entities, including small entities, through the following provisions of the rule: Section 6.300 provides that an EID is not required when the action is categorically excluded, or the applicant will prepare a draft EA and supporting documents. The Responsible Official may prepare the NEPA documents without assistance from the applicant. Section 6.302 provides that the Responsible Official may prepare generic guidance for categories of actions involving a large number of applicants; and must ensure early involvement of applicants, consult with the applicant and provide guidance describing the scope and level of environmental information required, and provide guidance on a projectbyproject basis to any applicant seeking assistance. This Section also provides that the Responsible Official must consider the extent to which the applicant is capable of providing the required information, must not require the applicant to gather data or perform analyses that unnecessarily duplicate either existing data or the results of existing analyses available to EPA, and must limit the request for environmental information to that necessary for the environmental review. Section 6.303 provides that an applicant may enter into a thirdparty agreement with EPA. For grantees, thirdparty agreement contractor costs may be granteligible. Permit applicants are not eligible for EPA financial assistance.

This final rule is applicable to certain EPA actions subject to NEPA, including certain applicantproposed projects. Because the projects are proposed by the applicants, who are nonfederal entities, including small businesses and small governments, EPA does not know what projects will be proposed, when they will be proposed, or what level of NEPA review will be required for each individual project. In this regard, EPA's NEPA review process is reactive to an applicant's request. These factors are built into this screening assessment, [[Page 53660]]
including assumptions about the entities likely to be subject to the regulations, the types of projects they are likely to propose, and the degree of possible economic impact based on the NEPA review process and the three levels of environmental documentation possible under this process using available historical information as future indicators. More detailed information on the small entity screening analysis can be found in the docket for this proposed rulemaking, EPAHQ00OECA2005 0062 (available at http://www.regulations.gov), and is summarized below.

Based on EPA's past experience, EPA anticipates that annually there will be approximately 170 small governments applying to EPA for STAG grants for projects subject to NEPA, and four small businesses applying to EPA for new source NPDES permits for a total of approximately 174 small entities out of potential 312 total entities. Of the 174 small entities possibly affected by this rule, we have determined that the economic impact of submitting onetime environmental documentation to support a CE determination would be less than 1% of annual revenues for all small entities; and that for the onetime costs associated with submitting EArelated environmental documentation six small entities (3.4%) could experience an economic impact of 13%, and up to four small entities (2%) could experience an economic impact of greater than 3%. Additionally, we have also determined that approximately 57 of the 174 small entities (33%) could experience an economic impact of 13%, and up to 26 of the 174 small entities (15%) could experience an economic impact of greater than 3% for the onetime costs associated with submitting EISrelated environmental documentation. In all, these approximately 83 small entities represent about 48% of the estimated 174 total number of small entities that could experience a onetime economic impact of 13% or greater of annual revenues. Of these 83 small entities, 79 are likely to be governmental grant applicants and could be granteligible for EPA financial assistance with only one EIS anticipated per three years with this likelihood spread over 300 total grant applicants, including small and large governments, including tribes, and special districts.

We have therefore concluded that today's final rule will relieve regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 1044, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a costbenefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most costeffective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector.

EPA believes the calculation for this UMRA assessment is representative of most projects. On an annual onetime submission basis, EPA's aggregate estimate for applicants is $3,823,740 for contractor hours and costs, direct labor hours and costs, including thirdyear costs for an EIS/ROD for one grantee project. The requirement in today's final rule for applicants to submit onetime, projectspecific environmental information does not impose substantial compliance costs on applicants, including governmental grantees, because it is not likely to result in the expenditure by applicants, including State and local governments, and tribes, in the aggregate, or the private sector, of $100 million or more in any one year. Thus, today's final rule is not subject to the requirements of sections 202 and 205 of the UMRA, and EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that 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.''

This final rule does not have federalism implications. It will 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. Under these NEPA regulations, as well as EPA's procedures for implementing Executive Order 12114, State and local governments are required to submit environmental information only when the State or local government is a projectapplicant for an EPA action subject to NEPA, for example, when the State or local government applies for a grant for a special project identified in EPA's State and Tribal Assistance (STAG) account, or for a new source NPDES permit issued by EPA. The requirement to submit environmental information to EPA for the NEPA review does not impose substantial compliance costs because it is not likely to result in the expenditure by State and local governments in the aggregate of $100 million or more in any one year. Further, this requirement does not preempt State law, or alter the current relationship between the States and the Federal Government. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the
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proposed rule from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' This final rule does not have tribal implications, as specified in Executive Order 13175. Neither the amendments to EPA's NEPA implementing regulations nor the minor, technical amendments to EPA's procedures implementing Executive Order 12114 impose new regulatory obligations on tribes. They will not have substantial direct effects on tribes, on the relationship between the national government and tribes, or on the distribution of power and responsibilities between the national government and tribes. Under EPA's regulations, Tribes are required to submit environmental information only when the Tribes are projectapplicants for EPA actions subject to NEPA or Executive Order 12114, for example, when Tribes apply for grants for special projects identified in EPA's State and Tribal Assistance (STAG) account, or for new source NPDES permits issued by EPA. The requirement to submit environmental information to EPA for the environmental review process do not impose substantial compliance costs because it is not likely to result in the expenditure by state, local, and tribal governments in the aggregate of $100 million or more in any one ye

FOR FURTHER INFORMATION CONTACT Mr. Robert Hargrove; NEPA Compliance Division; Office of Federal Activities (Mailcode 2252A); Environmental Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone (202) 5647157; fax number: (202) 5640072; email address:
hargrove.robert@epa.gov.

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