Technical Amendment to Financial Assistance Requirements for the National Estuary Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[FRL-5114-7]

Technical Amendment to Financial Assistance Requirements for the

National Estuary Program

AGENCY: Environmental Protection Agency.

ACTION: Interim final rule.

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Summary: The Environmental Protection Agency (EPA) is promulgating an

interim final rule which amends the regulations on financial assistance

under the Clean Water Act (CWA) for the National Estuary Program (NEP)

as set forth in 40 CFR part 35. This rule amends internal agency

procedure for providing financial assistance to the NEP. The effect of

these amendments is to delegate from EPA Headquarters to the EPA

Regional Administrators the authority to make assistance awards for

start-up activities in NEP Management Conferences and the authority to

review and comment on annual workplans prepared by Management

Conferences. These amendments recognize that the EPA Regions have

detailed knowledge about the issues in each estuary and that the

Regions have the responsibility for routine management of the NEP.

DATES: This interim final rule becomes effective November 29, 1994.

Written comments on this interim final rule will be accepted until 30

days after November 29, 1994.

ADDRESSES: Send written comments on the interim final rule to Ruth

Chemerys, MC-4504F, Environmental Protection Agency, 401 M Street SW.,

Washington, DC, 20460. Commenters are requested to submit any

references cited in their comments. Commenters who want receipt of

their comments acknowledged should include a self-addressed, stamped

envelope. No facsimiles (faxes) will be accepted.

A copy of the comments submitted will be available for review at

EPA's Oceans and Coastal Protection Division, room 811, 499 South

Capitol Street SW., Washington, DC 20460. For access to the comments or

for further information contact Ruth Chemerys, (202) 260-9038.

FOR FURTHER INFORMATION CONTACT: Ruth Chemerys at (202) 260-9038.

Supplementary Information:

A. Background

1. Description of the National Estuary Program

The National Estuary Program (NEP) was established under Section

320 of the Clean Water Act (CWA), as amended in 1987, to identify

nationally significant estuaries, protect and improve their water

quality, and enhance their living resources. Overall responsibility for

management of the program is given to the U.S. Environmental Protection

Agency (EPA). Estuaries are selected for the NEP based on their

potential to demonstrate innovative approaches for addressing issues of

national concern, as well as the likelihood of achieving environmental

improvements. Each NEP is managed by a collaborative body called the

Management Conference convened by EPA. Management conferences provide a

framework for local officials, technical experts, citizens, and

interest groups to identify major environmental problems in the estuary

and develop Comprehensive Conservation and Management Plans (CCMPs) for

addressing them.

Through estuary Management Conferences, the NEP helps to:

Establish partnerships among federal, state, and local

governments as well as citizens and business leaders within an estuary

watershed;

transfer scientific and management experience and

expertise to program participants;

Promote watershed-wide planning to control pollution and

protect living resources; and

Increase public awareness of pollution problems and ensure

public participation in the development of solutions.

The NEP also encourages Management Conferences to take corrective

and preventive actions as early as possible.

The NEP currently includes 21 estuaries: Casco Bay, Maine;

Massachusetts Bays and Buzzards Bay, Massachusetts; Narragansett Bay,

Rhode Island; Long Island Sound, Connecticut and New York; Peconic Bay,

New York; San Juan Harbor, Puerto Rico; New York-New Jersey Harbor, New

York and New Jersey; Delaware Estuary, New Jersey, Pennsylvania, and

Delaware; Delaware Inland Bays, Delaware; Albemarle-Pamlico Sound,

North Carolina; Indian River Lagoon, Tampa Bay, and Sarasota Bay,

Florida; Barataria-Terrebonne Estuarine Complex, Louisiana; Galveston

Bay and Corpus Christi Bay, Texas; Santa Monica Bay and San Francisco

Bay, California; Tillamook Bay, Oregon; and Puget Sound, Washington.

2. Financial Assistance to Estuary Programs

In 1989, EPA issued regulations as 40 CFR part 35, subpart P which

codify policies and procedures for financial assistance awarded by EPA

to state, interstate, and local agencies and other eligible agencies,

institutions, organizations, and individuals for activities under the

NEP. The regulations describe eligibility requirements and policies

regarding the use of funds awarded under Section 320, including

requirements for matching funds.

40 CFR part 35, subpart P also describes a three-level process

within EPA to assist individual estuary programs with planning and

oversight of their activities and to manage the funds available to the

NEP. The first level of planning is the development of the State/EPA

Conference Agreement, which describes milestones to be achieved over

the term of each management conference. Based on this Agreement, EPA

sets budgetary targets for each Management Conference in each fiscal

year.

The second level of planning is the development of an annual

workplan, which is developed by the Management Conference using the

budgetary targets provided by EPA. The workplan presents progress to

date, indicates major program directions necessary to meet milestones

in the State/EPA conference Agreement, documents projects to be

undertaken in the coming year, and specifies funds to be used to

support the projects. The workplan also documents the way in which 25

percent program match requirements will be met.

The third level of planning is a series of individual assistance

applications, which are reviewed by EPA and the Management Conference

for consistency with annual workplans.

B. Today's Rule

Today's regulation amends the Agency process for providing

financial assistance under the National Estuary Program as described in

40 CFR part 35 subpart P by delegating responsibility for managing the

start-up grants and reviewing annual workplans from Headquarters to the

Regions. These amendments are part of a delegation of responsibility

for management of the NEP from EPA Headquarters to the Regions. These

amendments recognize that the EPA Regions have responsibility for

routine management of the NEP and that several functions presently

conducted by Headquarters are more appropriately carried out by the

Regions.

1. Start-up Activities

NEP Management Conferences must conduct a number of activities

which lead to the signing of the State/EPA conference Agreement. These

``start-up'' activities include establishment of the management

committee structure, establishment of a program office, development of

program goals and priorities, identification of priority problems in

the estuary and development of the State/EPA conference Agreement

itself. Although these start-up activities are the initial steps in the

development of a CCMP, they were not described in the NEP financial

assistance regulations under 40 CFR part 35, Subpart P.

Today's rule amends Sec. 35.9065 of 40 CFR part 35 Subpart P by

providing the Regional Administrator the authority to issue assistance

awards under CWA Section 320(g) for all activities, including start-up

activities, leading to preparation of a CCMP consistent with EPA

guidance. Prior to this amendment, the Regional Administrator's grant

authority was limited to those activities that are consistent with the

State/EPA Conference Agreement and therefore which occur after the

Agreement has been signed. Assistance awards for start-up activities

were issued by the Assistant Administrator for Water. The Regions have

experience in managing NEP financial assistance for other phases of the

NEP and therefore have the necessary expertise to manage start-up

grants as well.

2. Annual Workplans

Section 35.9065 of 40 CFR part 35, subpart P described the

requirements for the contents of the Annual Work Plan. Today's rule

amends Section 35.9065 by requiring that annual workplans prepared by

estuary Management Conferences must be reviewed by the EPA Regional

Administrator before final ratification by the Management Conference.

Prior to this amendment, workplans were reviewed by EPA Headquarters

before ratification by the Management Conference. As participants in

NEP Management Conferences, the Regions are most familiar with the

issues in each NEP and have the necessary knowledge and expertise to

review workplans.

Compliance With Other Laws and Executive Orders

1. Administrative Procedure Act

Notice and Comment. The Administrative Procedure Act (APA) 5 U.S.C.

553 generally requires notice of proposed rulemaking to be published in

the Federal Register with an opportunity for public comment prior to

promulgation of a final rule. Section 553(a)(2) of the APA provides,

however, that the normal notice and comment requirements do not apply

to matters relating to grants. Today's rule amends regulations for

providing grants under the National Estuary Program (NEP) and is

therefore exempt from notice and comment requirements under Section

553(a). Furthermore, Section 553(b)(A) of the APA provides an

independent basis for issuing today's rule without notice and comment.

Under Section 553(b)(A), notice and comment requirements do not apply

to rules of agency organization, procedure, or practice. Today's rule

amends internal agency procedure by delegating responsibility for

reviewing NEP workplans and managing NEP start-up grants from EPA

Headquarters to the Regions. Today's rule is therefore exempt from

notice and comment requirements under Section 553(b)(A).

EPA, however, is seeking comment on the interim final rule to

ensure that the Agency has the full benefit of public comment on any

issues relating to NEP financial assistance. If necessary, EPA will

take final action on the interim final rule by reissuing the interim

final rule as a final rule or amending it as appropriate in light of

comments received.

Immediate Effectiveness. The APA generally requires that

substantive rules be published 30 days prior to their effective date.

Section 553(d) of the APA also provides, however, that the 30 day

comment period does not apply if ``provided by the agency for good

cause found and published with the rule.'' EPA is issuing today's

interim final rule as immediately effective under the provisions of 5

U.S.C. 553(d). As described elsewhere in this notice, today's rule

amends internal agency procedure relating to NEP financial assistance.

EPA believes that as this is a matter relating to internal Agency

procedure there is good cause for issuing today's interim final rule in

immediately effective form.

2. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to lead to a rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely and materially affecting a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof;

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

3. Paperwork Reduction Act

The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to

minimize the reporting and record keeping burden on the regulated

community as well as minimize the cost of Federal information

collection and dissemination. In general, the Act requires that

information requests and record keeping requirements affecting 10 or

more non-Federal respondents be approved by the Office of Management

and Budget. Since today's rule would not establish or modify any

information and record keeping requirements, it is not subject to the

requirements of the Paperwork Reduction Act.

4. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,

EPA must prepare a Regulatory Flexibility Analysis for regulations

having a significant impact on a substantial number of small entities.

The RFA recognizes three kinds of small entities and defines them as

follows:

(1) Small governmental jurisdictions--any government of a district

with a population of less than 50,000.

(2) Small business--any business which is independently owned and

operated and not dominant in its field as defined by Small Business

Administration regulations under 3 of the Small Business Act.

(3) Small organization--any not-for-profit enterprise that is

independently owned and operated and not dominant in its field.

As described above in the discussion of Executive Order 12866,

today's interim final rule does not impose economic burdens.

Accordingly, EPA has determined that today's rule would not have a

significant impact on a substantial number of small entities, and that

a Regulatory Flexibility Analysis therefore is unnecessary.

List of Subjects in 40 CFR Part 35

State and local assistance.

Dated: November 17, 1994.

Robert Perciasepe,

Assistant Administrator for Water, Environmental Protection Agency.

For the reasons set out in this preamble, part 35, subpart P of

title 40 of the Code of Federal Regulations is amended as follows:

PART 35--[AMENDED]

Subpart P--Financial Assistance for the National Estuary Program

1. The authority citation for Subpart P continues to read as

follows:

Authority: Sec. 320 of the Clean Water Act, as amended (33

U.S.C. 1330).

2. In Sec. 35.9065, paragraph (b) is removed, and paragraph (c) is

redesignated as paragraph (b) and newly designated paragraph (b)

introductory text is revised to read as follows:

Sec. 35.9065 Limitations.

(a) * * *

(b) Elements of annual workplans. Annual Work Plans to be prepared

by estuary Management Conferences must be reviewed by the Regional

Administrator before final ratification by the Management Conference

and must include the following elements:

* * * * *

[FR Doc. 94-29265 Filed 11-28-94; 8:45 am]

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