# Technical Amendment to Financial Assistance Requirements for the National Estuary Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29265 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 29, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29265. Public record. Not legal advice.