The National Environmental Policy Act-Guidance on Categorical Exclusions, 54816-54820 [06-7756]

Download as PDF pwalker on PRODPC60 with NOTICES 54816 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices construction starting on September 22, 2006. This notice provides information regarding submitting comments and accessing affected dockets during this period. FOR FURTHER INFORMATION CONTACT: Minh-Hai Tran-Lam, Mail code 2822T, Office of Information Collection, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 566–1647; fax number: (202) 566–1639; e-mail address: Tran-Lam.MinhHai@epa.gov. SUPPLEMENTARY INFORMATION: Dockets, Electronic Dockets, and Information Centers serve as the repository for information related to particular Agency actions. Regulations.gov serves as EPA’s electronic public docket and on-line comment system. If you would like to submit an electronic comment or obtain docket materials for an EPA docket, please visit http://www.regulations.gov. As of September 22, 2006, the EPA Docket Center (EPA/DC) Public Reading Room will be temporarily inaccessible to the public until November 6, 2006, due to construction. Public access to docket materials will still be provided. We strongly encourage you to visit the EPA Docket website at http:// www.epa.gov/epahome/dockets.htm in order to receive the latest status concerning the Public Reading Room and public access to docket materials. If you wish to obtain materials from a docket in the EPA/DC, please go first to http://www.regulations.gov and obtain electronic copies. If the materials are listed in the docket index but the documents themselves are not available in regulations.gov, please call (202) 566–1744 or e-mail the applicable Program Office Docket from the list provided below. EPA Docket Center operations will still continue during this period. In addition to electronic access through regulations.gov, public inspection of docket materials will be available by appointment during this period. Appointments may be made by calling (202) 566–1744 or by e-mailing the appropriate Docket Office listed below. If you wish to hand deliver comments during this period, you may drop them off between the hours of 8:30 a.m. and 4:30 p.m. eastern standard time (e.s.t.), Monday through Friday, excluding Federal holidays at the EPA Headquarters, Room 6146F in the EPA West Building located at 1301 Constitution Avenue, NW., Washington, DC. EPA visitors are required to show photographic identification and sign the EPA visitor log. After processing through the X-ray and magnetometer VerDate Aug<31>2005 16:49 Sep 18, 2006 Jkt 208001 machines, visitors will be given an EPA/ DC badge that must be visible at all times, and be escorted to Room 6146F to drop off comments. • Office of Air and Radiation (OAR) Docket -- E-mail: a-and-rDocket@epa.gov. • Office of Enforcement and Compliance Assurance (OECA) Docket -- E-mail: docket.oeca@epa.gov. • Office of Environmental Information (OEI) Docket (includes Toxics Release Inventory (TRI) Docket) -- E-mail: oei.docket@epa.gov. • Office of Pollution Prevention and Toxics (OPPT) Docket -- E-mail: oppt.ncic@epa.gov. • Office of Research and Development (ORD) Docket -- E-mail: ord.docket@epa.gov. • Office of Solid Waste and Emergency Response (OSWER) -- Resource Conservation and Recovery Act (RCRA) Docket -- E-mail: rcra-docket@epa.gov. -- Superfund Docket -- E-mail: superfund.docket@epa.gov. -- Underground Storage Tanks (UST) Docket -- E-mail: rcra-docket@epa.gov. • Office of Water (OW) Docket -- Email: OW-Docket@epa.gov. If you have any other questions concerning the temporary closing of the EPA/DC Public Reading Room, you may call (202) 566–1744 between the hours of 8:30 a.m. and 4:30 p.m. e.s.t. List of Subjects Environmental protection. Dated: September 14, 2006. Mark Luttner, Director, Office of Information Collection, Office of Environmental Information. [FR Doc. 06–7781 Filed 9–15–06; 12:58 pm] BILLING CODE 6560–50–S COUNCIL ON ENVIRONMENTAL QUALITY The National Environmental Policy Act—Guidance on Categorical Exclusions Council on Environmental Quality. ACTION: Notice and request for comments. AGENCY: SUMMARY: The Council on Environmental Quality (CEQ) used an interagency work group to develop guidance to Federal agencies for establishing and for using categorical exclusions in meeting their responsibilities under the National Environmental Policy Act (NEPA). CEQ invites comments on the proposed PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 guidance before issuing the final guidance to the heads of the Federal agencies. The proposed guidance, ‘‘Establishing, Revising, and Using Categorical Exclusions under the National Environmental Policy Act’’, is reprinted below and is also available at http://www.NEPA.gov in the Current Developments section. DATES: Written comments should be submitted on or before October 27, 2006. ADDRESSES: Electronic or facsimile comments on the proposed guidance are preferred because Federal offices experience intermittent mail delays from security screening. Electronic comments can be sent to NEPA Modernization (CE) at hgreczmiel@ceq.eop.gov. Written comments may be faxed to NEPA Modernization (CE) at (202) 456–0753. Written comments may also be submitted to NEPA Modernization (CE), Attn: Associate Director for NEPA Oversight, 722 Jackson Place NW., Washington DC 20503. FOR FURTHER INFORMATION CONTACT: Horst Greczmiel, 202–395–5750. SUPPLEMENTARY INFORMATION: The Council on Environmental Quality (CEQ) established a National Environmental Policy Act (NEPA) Task Force and is now implementing recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient. Additional information is available on the task force Web site at http://ceq.eh.doe.gov/ ntf. The proposed guidance, ‘‘Establishing, Revising, and Using Categorical Exclusions under the National Environmental Policy Act,’’ was developed to assist agencies with developing and using categorical exclusions for actions that do not have significant effects on the human environment and eliminate the need for unnecessary paperwork and effort under NEPA for categories of actions that normally do not warrant preparation of an environmental impact statement (EIS) or environmental assessment (EA). Developing and using appropriate categorical exclusions promotes the cost-effective use of agency NEPA related resources. CEQ requests public input and comments on the following proposed guidance: Establishing, Revising, and Using Categorical Exclusions under the National Environmental Policy Act. I. Introduction The following guidance is provided to assist Federal agencies in improving and E:\FR\FM\19SEN1.SGM 19SEN1 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices modernizing their administration of categorical exclusions under NEPA. The guidance recommends procedures and approaches for establishing and revising categorical exclusions; involving the public; documenting development, revision, and use of categorical exclusions; and periodically reviewing categorical exclusions. The CEQ regulations define categorical exclusion in 40 CFR 1508.4: • Categorical exclusion’’ means 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 (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. * * * Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect. CEQ established the CEQ NEPA Task Force to review NEPA implementation and identify opportunities to improve and modernize the NEPA process. To promote consistent categorical exclusion development and use, the CEQ NEPA Task Force recommended that CEQ issue clarifying guidance on categorical exclusions.1 This guidance is based on existing CEQ regulations and guidance, legal precedent, and agency NEPA experience. In keeping with CEQ regulations at 40 CFR 1507.1, the intent of this guidance is to allow agencies flexibility in implementing the procedures for categorical exclusions that are adapted to the requirements of other applicable laws. II. The Purpose of Establishing New Categorical Exclusions 2 pwalker on PRODPC60 with NOTICES The purpose of a categorical exclusion is to eliminate the need for unnecessary paperwork and effort under NEPA for categories of actions that normally do not warrant preparation of an environmental impact statement (EIS) or environmental assessment (EA).3 Developing appropriate categorical exclusions promotes the cost-effective use of agency NEPA related resources. Federal agency personnel should develop a categorical exclusion when 1 Council on Environmental Quality, ‘‘The NEPA Task Force Report to the Council on Environmental Quality—Modernizing NEPA Implementation’’, (Sept. 2003), available at http:// www.ceq.eh.doe.gov/ntf. 2 This guidance applies to establishing new or revised categorical exclusions, and uses the term ‘‘new’’ to include revisions of categorical exclusions that are more than administrative (e.g., revise to update outdated office or agency title) or editorial (e.g., correct spelling or typographical errors). 3 40 CFR 1500.4(p) and 1500.5(k). VerDate Aug<31>2005 16:49 Sep 18, 2006 Jkt 208001 they identify a class of actions without significant environmental impacts. A Federal agency should also consider developing categorical exclusions to respond to changes in mission or responsibilities as the agency gains experience with the new activities and their environmental consequences.4 Revision of an existing categorical exclusion can promote efficiency by clarifying the actions that are covered by an existing categorical exclusion. For example, a Federal agency may find that an existing categorical exclusion is not being used because the category of actions is too narrowly defined. In such cases, the agency should consider expanding the category of actions. Conversely, if an agency finds that an existing categorical exclusion includes actions that are regularly found to require additional NEPA analysis, then the agency should revise the categorical exclusion to limit the category of actions included. III. Substantiating a New Categorical Exclusion A key issue confronting Federal agencies is how to evaluate whether a proposed categorical exclusion is appropriate and how to support the determination that it describes a category of actions that do not individually or cumulatively have a significant effect on the human environment.5 The information that supports establishing a categorical exclusion should demonstrate how the agency determined that the proposed categorical exclusion does not typically result in significant environmental effects and set forth the methodology and any criteria used to define the proposed category of actions. A. The Elements of a Categorical Exclusion The text of a proposed categorical exclusion should clearly define the category of actions as well as any physical or environmental factors that would constrain its use. An example of a physical constraint is a limit on the extent of the action (e.g., miles). Examples of environmental constraints are limits on where and under what conditions the categorical exclusion may be used (e.g., particular seasons in habitat areas). Federal agencies should also consider the opportunity to develop categorical exclusions that are limited in their application to regions or areas of the country where it can demonstrate 4 When legislative or administrative restructuring creates a new agency or realigns an existing agency, the agency may need to develop new NEPA procedures that include categorical exclusions. 5 40 CFR 1508.7, 1508.8, and 1508.27. PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 54817 that the actions do not present significant impacts based on the similarity of environmental settings. When developing a categorical exclusion, the Federal agency must make certain that the proposed category clearly describes all the actions that should be included. Categorical exclusions should not be established in a disaggregated or segmented format simply to circumvent the evaluation of environmental effects required for NEPA compliance through an EA or EIS. A Federal agency’s NEPA procedures for categorical exclusions must provide for extraordinary circumstances.6 Extraordinary circumstances function to identify the atypical situation or environmental setting where an otherwise excluded action merits further analysis and documentation in an EA or an EIS. For many agencies, their existing extraordinary circumstances provisions (often presented as a list) will suffice. However, an agency may develop extraordinary circumstances that specifically relate to the new categorical exclusion and propose them in conjunction with the categorical exclusion. B. Gathering Information To Substantiate a Categorical Exclusion CEQ guidance generally addresses establishing categorical exclusions. Section 1507 of the CEQ regulations directs Federal agencies when establishing implementing procedures to identify those actions which experience has indicated will not have a significant environmental effect and to categorically exclude them * * * 7 Various sources of information relevant to the action and its environmental effects may be used to substantiate a categorical exclusion including but not limited to evaluation of implemented actions, impact demonstration projects, information from professional staff and expert opinion or scientific analyses, and others’ experiences (benchmarking).8 6 40 CFR 1508.4. on Environmental Quality, ‘‘Guidance Regarding NEPA Regulations,’’ 48 FR 34263 (July 28, 1983), available at http://www.nepa.gov/nepa/ regs/1983/1983guid.htm. 8 Agencies should be mindful of their obligations under the Information Quality Act to ensure the quality, objectivity, utility, and integrity of the information they use or disseminate as the basis of an agency decision to establish a new categorical exclusion. Section 515, Public Law 106–554; Office of Management and Budget Information Quality Guidelines, 67 FR 8452 (Feb. 22, 2002), available at http://www.whitehouse.gov/omb/inforeg/ infopoltech.html. Additional laws and regulations establish obligations that apply or may apply to the processes of establishing and applying categorical exclusions, such as the Federal Records Act; these are beyond the scope of this guidance. 7 Council E:\FR\FM\19SEN1.SGM 19SEN1 54818 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices Sources with substantial similarities to the proposed categorical exclusion will prove to be the most useful. Substantiating information should account for similarities and differences relative to the proposed categorical exclusion in terms of the scope of actions, methods of implementation, and environmental settings. The Federal agency should maintain an administrative record that includes all sources of information used and related findings. The agency should also summarize that information and the related findings in the Federal Register publication of the proposed categorical exclusion. pwalker on PRODPC60 with NOTICES 1. Evaluating an Agency’s Implemented Actions Evaluation of implemented actions, as used in this guidance, refers to monitoring and evaluating the environmental effects of the Federal agency’s completed or ongoing actions. The benefit of evaluating an agency’s own actions is that the implementation and operating procedures are in place and well known. The evaluation should include data collected before the proposed categorical exclusion is finalized. Collaboratively monitoring and evaluating implemented actions with non-federal entities can provide useful information for substantiating a categorical exclusion. For a category of actions that the agency analyzed in EAs that supported Findings of No Significant Impact (FONSIs), evaluations can validate the predicted environmental effects, and provide strong support for a proposed categorical exclusion. Evaluation of implemented actions analyzed in an EIS may also be used to substantiate a categorical exclusion for activities. An EIS can be used when the action is minor, subordinate to and not dependent upon other actions. An EIS can also be used when it analyzes both a large management action and a smaller, independent action. Finally, Federal agencies with an Environmental Management System (EMS) may be able to use data generated through their EMS.9 An EMS may provide a record of environmental performance and help identify actions that should be included in a proposed categorical exclusion or proposed extraordinary circumstances. 9 An EMS provides a systematic framework for a Federal agency to monitor and continually improve its environmental performance through audits, evaluation of legal and other requirements, and management reviews. VerDate Aug<31>2005 16:49 Sep 18, 2006 Jkt 208001 2. Impact Demonstration Projects As used in this guidance, the term impact demonstration project describes a project that includes the NEPA analysis of a proposed action (for which the agency does not have extensive experience), implementation of the action, and evaluation of the environmental effects of the action. The NEPA documentation prepared for the demonstration project should explain that one of the purposes of the NEPA process is to generate analyses for substantiating a proposed categorical exclusion. In designing an impact demonstration project it is particularly important that the action being evaluated accurately reflect the category of actions described in the proposed categorical exclusion and that the action is implemented under similar operational and environmental conditions as in the proposed categorical exclusion. Several projects may be useful when environmental conditions vary in different regions where the categorical exclusion would be used. 3. Professional Staff and Expert Opinions, and Scientific Analyses A Federal agency may use their professional staff and outside expert opinions as a valid source of information to substantiate a categorical exclusion. Those individuals should have special knowledge, training, experience, or understanding relevant to implementation of the actions described in the proposed categorical exclusion and the environmental effects of the action. The agency record should include such individuals’ credentials (e.g., education, training, certifications, years of related experience). The use of scientific analyses need not be limited to peer-reviewed findings and may also include professional opinions, reports, and research findings. However, because the reliability of scientific information varies according to its source and the rigor with which it was developed, the Federal agency remains responsible for determining whether the information in question reflects accepted knowledge or findings and addresses the effects of the actions included in the proposed categorical exclusion. 4. Benchmarking Public and Private Entities’ Experiences As used in this guidance, the term benchmarking means using information and records from other private and public entities’ experience with similar actions. When evaluating whether it is appropriate to rely on others’ PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 experience, it will be necessary to demonstrate that the categorically excluded actions and their environmental effects are comparable to the category of actions in the proposed categorical exclusion. Benchmarking should consider the similarities and differences in: (1) Methods of implementing the actions; (2) characteristics of the actions; (3) frequency of the actions; (4) applicable standard operating procedures or implementing guidance; and (5) environmental settings in which the actions take place. Although an agency cannot simply use another agency’s categorical exclusion for a proposed action, a Federal agency may find it useful to consider another Federal agency’s experience and supporting information involving categorically excluded actions. C. Refining a Proposed New Categorical Exclusion If a proposed categorical exclusion is found to have a potentially significant effect, the Federal agency should either drop consideration of the categorical exclusion or consider refining it. Examples include: limiting or removing actions included in the proposed categorical exclusion; adding text that places additional constraints on the use of the categorical exclusion; or refining the applicable extraordinary circumstances. Federal agencies may also consider limiting the geographic applicability of the categorical exclusion. For example, if the category of actions is typically without significant effects in the northeastern United States or in a particular set of watersheds, it may be appropriate to establish a regional or spatially-based categorical exclusion. Furthermore, when developing a new categorical exclusion, it may be helpful or necessary to identify extraordinary circumstances specifically tailored for that categorical exclusion. Such tailoring would facilitate identifying atypical circumstances and further ensure that the use of the categorical exclusion would typically not result in individual or cumulative significant environmental effects. IV. Procedures for Establishing a New Categorical Exclusion The process of establishing or revising an agency’s NEPA procedures, as distinguished from explanatory guidance, is found in 40 CFR 1507.3(a). Each agency shall consult with the Council while developing its procedures and before publishing them in the Federal Register for comment. Agencies with similar procedures should consult with each other and the E:\FR\FM\19SEN1.SGM 19SEN1 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices pwalker on PRODPC60 with NOTICES Council to coordinate their procedures, especially for programs requesting similar information from applicants. The procedures shall be adopted only after an opportunity for public review and after review by the Council for conformity with the Act and these regulations [40 CFR parts 1500—1508]. The Council shall complete its review within 30 days. Once in effect they shall be filed with the Council and made readily available to the public. Agencies are encouraged to publish explanatory guidance for these regulations and their own procedures. Agencies shall continue to review their policies and procedures and in consultation with the Council to revise them as necessary to ensure full compliance with the purposes and provisions of the Act. Federal agencies are encouraged to involve CEQ early in the process to take advantage of CEQ expertise and assist in coordinating with other agencies to make the process as efficient as possible. Federal agencies should consult with CEQ on both the proposed categorical exclusion and the final categorical exclusion.10 Any proposed categorical exclusion must be made available for public review and comment. At a minimum, the CEQ regulations require Federal agencies to publish the proposed categorical exclusion in the Federal Register and provide a period during which the public may submit comments on the proposal.11 Federal agencies are encouraged to maintain a file of the comments and responses. To maximize the value of input from interested parties and assist them in focusing their comments, the agency should make information supporting the categorical exclusion available to the public. Following the public comment period, the Federal agency should consult with CEQ and review the nature of any substantive comments received and how they were addressed. For consultation to successfully conclude, CEQ must provide a written statement that the final proposed categorical exclusion was developed in conformity with NEPA and the CEQ regulations. CEQ must complete its review within 30 days of receiving the final text of the proposed categorical exclusion. The final categorical exclusion must then be published in the Federal Register. This publication can serve to satisfy the requirements that the agency file the categorical exclusion with CEQ, and make it readily available to the public. The following recommended and required steps establish a categorical exclusion as part of the agency NEPA 10 40 11 40 CFR 1507.3. CFR 1507.3 and 1506.6(b)(2). VerDate Aug<31>2005 16:49 Sep 18, 2006 Jkt 208001 procedures, regardless of the format the agency uses for its NEPA procedures:12 1. Draft proposed categorical exclusion based on experience indicated in supporting information. 2. Consult with CEQ on draft of proposed categorical exclusion. 3. Consult other Federal agencies with similar procedures, jurisdiction by law, or special expertise regarding the category of activities and their effects. 4. Publish notice of proposed categorical exclusion in the Federal Register for public review and comment. 5. Consider public comments in developing final categorical exclusion. 6. Consult with CEQ on final categorical exclusion to obtain determination of conformity with NEPA and the CEQ regulations. 7. Publish final categorical exclusion in the Federal Register. 8. File final categorical exclusion with CEQ. 9. Make final categorical exclusion readily available to the public. V. Public Involvement in Establishing a Categorical Exclusion A NEPA process is not required for establishing or revising agency NEPA procedures.13 However, engaging the public in the environmental aspects of Federal decisionmaking is a key aspect of NEPA and an opportunity for public involvement beyond publication in the Federal Register for review and comment should be considered.14 The Federal Register notice requesting comment on the proposed categorical exclusion should: • Describe the proposed categorical exclusion and provide the proposed text. • Summarize the agency rationale and history for its development and advise the public on how to access the agency’s supporting information and, whenever practicable, include a link to a Web site containing the supporting information.15 • Define all applicable terms. 12 NEPA and the CEQ regulations do not require agency NEPA implementing procedures to be promulgated as regulations through formal rulemaking; therefore the rulemaking process is not described herein. Agencies that use rulemaking should ensure they comply with all appropriate requirements. 13 Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972–73 (S.D. Ill. 1999), aff’d, 230 F.3d 947, 954–56 (7th Cir. 2000). 14 ‘‘Agencies shall: (a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.’’ 40 CFR 1506.6. 15 Ready access to all supporting information may minimize the need for members of the public to depend on Freedom of Information Act requests and enhance the NEPA goals of outreach and disclosure. PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 54819 • Summarize how the proposed categorical exclusion fits into the existing agency NEPA implementation process. • Explain how extraordinary circumstances, and possibly other factors such as connected actions and cumulative impacts, may limit the use of the categorical exclusion. • Explain available avenues for public comment and feedback on the proposed categorical exclusion. When establishing a categorical exclusion the Federal agency should tailor the type and length of the public involvement to the nature of the proposed category of actions and its perceived environmental effects. CEQ encourages Federal agencies to engage interested parties such as public interest groups, Federal NEPA contacts at other agencies, consultants, and Tribal, State, and local government agencies to share relevant data, information and concerns. The methods noted in 40 CFR 1506.6 and other public involvement techniques such as focus groups, meetings, e-mail exchanges, conference calls, and Web-based forums can be used to stimulate public involvement. VI. Using an Established Categorical Exclusion The CEQ regulations do not address documentation or public involvement for using a categorical exclusion. CEQ guidance states: ‘‘(T)he Council believes that sufficient information will usually be available during the course of normal project development to determine the need for an EIS and further that the agency’s administrative record will clearly document the basis for its decision. Accordingly, the Council strongly discourages procedures that would require the preparation of additional paperwork to document that an activity has been categorically excluded.16 A. Documentation Each Federal agency should decide if a categorical exclusion determination warrants preparing additional paperwork and, if so, how much documentation is appropriate. Documentation is an important component of any adequate administrative record. The extent of the documentation should be related to the type of action involved, the potential for extraordinary circumstances, and compliance with other laws, regulations, and policies. A Federal agency may decide to create a concise record for an action where 16 Council on Environmental Quality, ‘‘Guidance Regarding NEPA Regulations’’, 48 FR 34263 (July 28, 1983), available at http://www.nepa.gov/nepa/ regs/1983/1983guid.htm. E:\FR\FM\19SEN1.SGM 19SEN1 54820 Federal Register / Vol. 71, No. 181 / Tuesday, September 19, 2006 / Notices there are reasonable questions regarding the existence of extraordinary circumstances that may create the potential for the use of the categorical exclusion to be questioned. If a record is prepared, it should cite the categorical exclusion used and show that the agency considered: (1) How the action fits within the class of actions described in the categorical exclusion, and (2) whether there are any extraordinary circumstances that would preclude the project or proposed action from qualifying as a categorically excluded action. Some courts have required documentation to demonstrate that a Federal agency has considered extraordinary circumstances in cases where the absence of extraordinary circumstances is not obvious.17 Documenting the use of a categorical exclusion facilitates judicial review under the Administrative Procedure Act, which requires review to be based upon a pre-existing record.18 Using a categorical exclusion does not absolve Federal agencies from complying with the requirements of other laws, regulations, and policies. Documentation created for individual actions or projects may be necessary to comply with such requirements. When that is the case, all resource analyses and the results of any consultations or coordination (e.g., under Endangered Species Act or National Historic Preservation Act), should be included or incorporated by reference in the administrative record for the action. B. Public Involvement Most Federal agencies do not routinely notify the public when they use a categorical exclusion to meet their NEPA responsibilities. In situations where there is a high public interest in an action that will be categorically excluded, CEQ encourages Federal agencies to involve the public in some manner (e.g., notification, scoping), particularly when the public can assist the agency in determining whether a proposal involves extraordinary circumstances or cumulative impacts. pwalker on PRODPC60 with NOTICES VII. Periodic Review of Categorical Exclusions The CEQ regulations direct Federal agencies to periodically review their policies and procedures; however, they 17 Council on Environmental Quality, ‘‘The NEPA Task Force Report to the Council on Environmental Quality—Modernizing NEPA Implementation,’’ p. 58 (Sept. 2003), available at http:// www.ceq.eh.doe.gov/ntf. 18 The agency determination that an action is categorically excluded may be challenged under the Administrative Procedures Act. 5 U.S.C. 702 et seq. VerDate Aug<31>2005 16:49 Sep 18, 2006 Jkt 208001 do not describe how such a review should be conducted.19 CEQ encourages Federal agencies to develop procedures for identifying and revising categorical exclusions that no longer effectively reflect current environmental circumstances or where agency procedures, programs, or missions have changed. A Federal agency can keep a record of its experience by tracking information provided by agency field offices.20 In such cases, a Federal agency review of a categorical exclusion could consist of e-mails, memos, and letters from field offices that include observations of the effects of implemented actions, and public input on actions and their environmental effects. Another approach to reviewing existing categorical exclusions is through a program review. Program reviews can occur at various levels (e.g., field office, division office, headquarters office) and on various scales (e.g., geographic location, project type, or as a result of an interagency agreement). While a Federal agency may choose to initiate a program review that specifically focuses on categorical exclusions, it is possible that program reviews with a different focus may also be able to provide documentation of experience relevant to a categorical exclusion. There are many good reasons why Federal agencies should perform categorical exclusion reviews. They can serve as the impetus for expanding the categorical exclusion to include actions not previously categorically excluded. They may help identify additional extraordinary circumstances. Categorical exclusion reviews may also help a Federal agency consider the appropriate documentation when using certain categorical exclusions. Finally, the rationale and supporting information for establishing or documenting experience with using a categorical exclusion can be lost when there are inadequate systems and procedures for recording, retrieving, and preserving agency documents and administrative records. Therefore, Federal agencies may benefit from a review of current practices used for maintaining and preserving such records. Measures to ensure future availability may include, but not be limited to, redundant storage systems (e.g., multiple drives, paper copies), and improvements in the agency electronic CFR 1506.6. on Environmental Quality, ‘‘The NEPA Task Force Report to the Council on Environmental Quality—Modernizing NEPA Implementation’’, p. 63, (Sept. 2003), available at http:// www.ceq.eh.doe.gov/ntf. and hard copy filing and retrieval systems.21 Public comments are requested on or before October 27, 2006. Dated: September 14, 2006. James L. Connaughton, Chairman, Council on Environmental Quality. [FR Doc. 06–7756 Filed 9–18–06; 8:45 am] BILLING CODE 3125–W6–P FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/. Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 13, 2006. A. Federal Reserve Bank of Richmond (A. Linwood Gill, III, Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528: 19 40 20 Council PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 21 Council on Environmental Quality, ‘‘The NEPA Task Force Report to the Council on Environmental Quality—Modernizing NEPA Implementation’’, p. 63, (Sept. 2003), available at http:// www.ceq.eh.doe.gov/ntf. E:\FR\FM\19SEN1.SGM 19SEN1

Agencies

[Federal Register Volume 71, Number 181 (Tuesday, September 19, 2006)]
[Notices]
[Pages 54816-54820]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7756]


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COUNCIL ON ENVIRONMENTAL QUALITY


The National Environmental Policy Act--Guidance on Categorical 
Exclusions

AGENCY: Council on Environmental Quality.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: The Council on Environmental Quality (CEQ) used an interagency 
work group to develop guidance to Federal agencies for establishing and 
for using categorical exclusions in meeting their responsibilities 
under the National Environmental Policy Act (NEPA). CEQ invites 
comments on the proposed guidance before issuing the final guidance to 
the heads of the Federal agencies. The proposed guidance, 
``Establishing, Revising, and Using Categorical Exclusions under the 
National Environmental Policy Act'', is reprinted below and is also 
available at http://www.NEPA.gov in the Current Developments section.

DATES: Written comments should be submitted on or before October 27, 
2006.

ADDRESSES: Electronic or facsimile comments on the proposed guidance 
are preferred because Federal offices experience intermittent mail 
delays from security screening. Electronic comments can be sent to NEPA 
Modernization (CE) at hgreczmiel@ceq.eop.gov. Written comments may be 
faxed to NEPA Modernization (CE) at (202) 456-0753. Written comments 
may also be submitted to NEPA Modernization (CE), Attn: Associate 
Director for NEPA Oversight, 722 Jackson Place NW., Washington DC 
20503.

FOR FURTHER INFORMATION CONTACT: Horst Greczmiel, 202-395-5750.

SUPPLEMENTARY INFORMATION: The Council on Environmental Quality (CEQ) 
established a National Environmental Policy Act (NEPA) Task Force and 
is now implementing recommendations designed to modernize the 
implementation of NEPA and make the NEPA process more effective and 
efficient. Additional information is available on the task force Web 
site at http://ceq.eh.doe.gov/ntf.
    The proposed guidance, ``Establishing, Revising, and Using 
Categorical Exclusions under the National Environmental Policy Act,'' 
was developed to assist agencies with developing and using categorical 
exclusions for actions that do not have significant effects on the 
human environment and eliminate the need for unnecessary paperwork and 
effort under NEPA for categories of actions that normally do not 
warrant preparation of an environmental impact statement (EIS) or 
environmental assessment (EA). Developing and using appropriate 
categorical exclusions promotes the cost-effective use of agency NEPA 
related resources. CEQ requests public input and comments on the 
following proposed guidance:
    Establishing, Revising, and Using Categorical Exclusions under the 
National Environmental Policy Act.

I. Introduction

    The following guidance is provided to assist Federal agencies in 
improving and

[[Page 54817]]

modernizing their administration of categorical exclusions under NEPA. 
The guidance recommends procedures and approaches for establishing and 
revising categorical exclusions; involving the public; documenting 
development, revision, and use of categorical exclusions; and 
periodically reviewing categorical exclusions.
    The CEQ regulations define categorical exclusion in 40 CFR 1508.4:

     Categorical exclusion'' means 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 (Sec.  1507.3) and for which, therefore, 
neither an environmental assessment nor an environmental impact 
statement is required. * * * Any procedures under this section shall 
provide for extraordinary circumstances in which a normally excluded 
action may have a significant environmental effect.

    CEQ established the CEQ NEPA Task Force to review NEPA 
implementation and identify opportunities to improve and modernize the 
NEPA process. To promote consistent categorical exclusion development 
and use, the CEQ NEPA Task Force recommended that CEQ issue clarifying 
guidance on categorical exclusions.\1\ This guidance is based on 
existing CEQ regulations and guidance, legal precedent, and agency NEPA 
experience. In keeping with CEQ regulations at 40 CFR 1507.1, the 
intent of this guidance is to allow agencies flexibility in 
implementing the procedures for categorical exclusions that are adapted 
to the requirements of other applicable laws.
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    \1\ Council on Environmental Quality, ``The NEPA Task Force 
Report to the Council on Environmental Quality--Modernizing NEPA 
Implementation'', (Sept. 2003), available at http://
www.ceq.eh.doe.gov/ntf.
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II. The Purpose of Establishing New Categorical Exclusions \2\

    The purpose of a categorical exclusion is to eliminate the need for 
unnecessary paperwork and effort under NEPA for categories of actions 
that normally do not warrant preparation of an environmental impact 
statement (EIS) or environmental assessment (EA).\3\ Developing 
appropriate categorical exclusions promotes the cost-effective use of 
agency NEPA related resources. Federal agency personnel should develop 
a categorical exclusion when they identify a class of actions without 
significant environmental impacts. A Federal agency should also 
consider developing categorical exclusions to respond to changes in 
mission or responsibilities as the agency gains experience with the new 
activities and their environmental consequences.\4\
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    \2\ This guidance applies to establishing new or revised 
categorical exclusions, and uses the term ``new'' to include 
revisions of categorical exclusions that are more than 
administrative (e.g., revise to update outdated office or agency 
title) or editorial (e.g., correct spelling or typographical 
errors).
    \3\ 40 CFR 1500.4(p) and 1500.5(k).
    \4\ When legislative or administrative restructuring creates a 
new agency or realigns an existing agency, the agency may need to 
develop new NEPA procedures that include categorical exclusions.
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    Revision of an existing categorical exclusion can promote 
efficiency by clarifying the actions that are covered by an existing 
categorical exclusion. For example, a Federal agency may find that an 
existing categorical exclusion is not being used because the category 
of actions is too narrowly defined. In such cases, the agency should 
consider expanding the category of actions. Conversely, if an agency 
finds that an existing categorical exclusion includes actions that are 
regularly found to require additional NEPA analysis, then the agency 
should revise the categorical exclusion to limit the category of 
actions included.

III. Substantiating a New Categorical Exclusion

    A key issue confronting Federal agencies is how to evaluate whether 
a proposed categorical exclusion is appropriate and how to support the 
determination that it describes a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment.\5\ The information that supports establishing a 
categorical exclusion should demonstrate how the agency determined that 
the proposed categorical exclusion does not typically result in 
significant environmental effects and set forth the methodology and any 
criteria used to define the proposed category of actions.
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    \5\ 40 CFR 1508.7, 1508.8, and 1508.27.
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A. The Elements of a Categorical Exclusion

    The text of a proposed categorical exclusion should clearly define 
the category of actions as well as any physical or environmental 
factors that would constrain its use. An example of a physical 
constraint is a limit on the extent of the action (e.g., miles). 
Examples of environmental constraints are limits on where and under 
what conditions the categorical exclusion may be used (e.g., particular 
seasons in habitat areas). Federal agencies should also consider the 
opportunity to develop categorical exclusions that are limited in their 
application to regions or areas of the country where it can demonstrate 
that the actions do not present significant impacts based on the 
similarity of environmental settings.
    When developing a categorical exclusion, the Federal agency must 
make certain that the proposed category clearly describes all the 
actions that should be included. Categorical exclusions should not be 
established in a disaggregated or segmented format simply to circumvent 
the evaluation of environmental effects required for NEPA compliance 
through an EA or EIS.
    A Federal agency's NEPA procedures for categorical exclusions must 
provide for extraordinary circumstances.\6\ Extraordinary circumstances 
function to identify the atypical situation or environmental setting 
where an otherwise excluded action merits further analysis and 
documentation in an EA or an EIS. For many agencies, their existing 
extraordinary circumstances provisions (often presented as a list) will 
suffice. However, an agency may develop extraordinary circumstances 
that specifically relate to the new categorical exclusion and propose 
them in conjunction with the categorical exclusion.
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    \6\ 40 CFR 1508.4.
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B. Gathering Information To Substantiate a Categorical Exclusion

    CEQ guidance generally addresses establishing categorical 
exclusions.

    Section 1507 of the CEQ regulations directs Federal agencies 
when establishing implementing procedures to identify those actions 
which experience has indicated will not have a significant 
environmental effect and to categorically exclude them * * * \7\
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    \7\ Council on Environmental Quality, ``Guidance Regarding NEPA 
Regulations,'' 48 FR 34263 (July 28, 1983), available at http://
www.nepa.gov/nepa/regs/1983/1983guid.htm.

    Various sources of information relevant to the action and its 
environmental effects may be used to substantiate a categorical 
exclusion including but not limited to evaluation of implemented 
actions, impact demonstration projects, information from professional 
staff and expert opinion or scientific analyses, and others' 
experiences (benchmarking).\8\
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    \8\ Agencies should be mindful of their obligations under the 
Information Quality Act to ensure the quality, objectivity, utility, 
and integrity of the information they use or disseminate as the 
basis of an agency decision to establish a new categorical 
exclusion. Section 515, Public Law 106-554; Office of Management and 
Budget Information Quality Guidelines, 67 FR 8452 (Feb. 22, 2002), 
available at http://www.whitehouse.gov/omb/inforeg/infopoltech.html. 
Additional laws and regulations establish obligations that apply or 
may apply to the processes of establishing and applying categorical 
exclusions, such as the Federal Records Act; these are beyond the 
scope of this guidance.

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[[Page 54818]]

    Sources with substantial similarities to the proposed categorical 
exclusion will prove to be the most useful. Substantiating information 
should account for similarities and differences relative to the 
proposed categorical exclusion in terms of the scope of actions, 
methods of implementation, and environmental settings. The Federal 
agency should maintain an administrative record that includes all 
sources of information used and related findings. The agency should 
also summarize that information and the related findings in the Federal 
Register publication of the proposed categorical exclusion.
1. Evaluating an Agency's Implemented Actions
    Evaluation of implemented actions, as used in this guidance, refers 
to monitoring and evaluating the environmental effects of the Federal 
agency's completed or ongoing actions. The benefit of evaluating an 
agency's own actions is that the implementation and operating 
procedures are in place and well known. The evaluation should include 
data collected before the proposed categorical exclusion is finalized. 
Collaboratively monitoring and evaluating implemented actions with non-
federal entities can provide useful information for substantiating a 
categorical exclusion.
    For a category of actions that the agency analyzed in EAs that 
supported Findings of No Significant Impact (FONSIs), evaluations can 
validate the predicted environmental effects, and provide strong 
support for a proposed categorical exclusion. Evaluation of implemented 
actions analyzed in an EIS may also be used to substantiate a 
categorical exclusion for activities. An EIS can be used when the 
action is minor, subordinate to and not dependent upon other actions. 
An EIS can also be used when it analyzes both a large management action 
and a smaller, independent action.
    Finally, Federal agencies with an Environmental Management System 
(EMS) may be able to use data generated through their EMS.\9\ An EMS 
may provide a record of environmental performance and help identify 
actions that should be included in a proposed categorical exclusion or 
proposed extraordinary circumstances.
2. Impact Demonstration Projects
    As used in this guidance, the term impact demonstration project 
describes a project that includes the NEPA analysis of a proposed 
action (for which the agency does not have extensive experience), 
implementation of the action, and evaluation of the environmental 
effects of the action. The NEPA documentation prepared for the 
demonstration project should explain that one of the purposes of the 
NEPA process is to generate analyses for substantiating a proposed 
categorical exclusion.
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    \9\ An EMS provides a systematic framework for a Federal agency 
to monitor and continually improve its environmental performance 
through audits, evaluation of legal and other requirements, and 
management reviews.
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    In designing an impact demonstration project it is particularly 
important that the action being evaluated accurately reflect the 
category of actions described in the proposed categorical exclusion and 
that the action is implemented under similar operational and 
environmental conditions as in the proposed categorical exclusion. 
Several projects may be useful when environmental conditions vary in 
different regions where the categorical exclusion would be used.
3. Professional Staff and Expert Opinions, and Scientific Analyses
    A Federal agency may use their professional staff and outside 
expert opinions as a valid source of information to substantiate a 
categorical exclusion. Those individuals should have special knowledge, 
training, experience, or understanding relevant to implementation of 
the actions described in the proposed categorical exclusion and the 
environmental effects of the action. The agency record should include 
such individuals' credentials (e.g., education, training, 
certifications, years of related experience).
    The use of scientific analyses need not be limited to peer-reviewed 
findings and may also include professional opinions, reports, and 
research findings. However, because the reliability of scientific 
information varies according to its source and the rigor with which it 
was developed, the Federal agency remains responsible for determining 
whether the information in question reflects accepted knowledge or 
findings and addresses the effects of the actions included in the 
proposed categorical exclusion.
4. Benchmarking Public and Private Entities' Experiences
    As used in this guidance, the term benchmarking means using 
information and records from other private and public entities' 
experience with similar actions. When evaluating whether it is 
appropriate to rely on others' experience, it will be necessary to 
demonstrate that the categorically excluded actions and their 
environmental effects are comparable to the category of actions in the 
proposed categorical exclusion. Benchmarking should consider the 
similarities and differences in: (1) Methods of implementing the 
actions; (2) characteristics of the actions; (3) frequency of the 
actions; (4) applicable standard operating procedures or implementing 
guidance; and (5) environmental settings in which the actions take 
place. Although an agency cannot simply use another agency's 
categorical exclusion for a proposed action, a Federal agency may find 
it useful to consider another Federal agency's experience and 
supporting information involving categorically excluded actions.

C. Refining a Proposed New Categorical Exclusion

    If a proposed categorical exclusion is found to have a potentially 
significant effect, the Federal agency should either drop consideration 
of the categorical exclusion or consider refining it. Examples include: 
limiting or removing actions included in the proposed categorical 
exclusion; adding text that places additional constraints on the use of 
the categorical exclusion; or refining the applicable extraordinary 
circumstances.
    Federal agencies may also consider limiting the geographic 
applicability of the categorical exclusion. For example, if the 
category of actions is typically without significant effects in the 
northeastern United States or in a particular set of watersheds, it may 
be appropriate to establish a regional or spatially-based categorical 
exclusion.
    Furthermore, when developing a new categorical exclusion, it may be 
helpful or necessary to identify extraordinary circumstances 
specifically tailored for that categorical exclusion. Such tailoring 
would facilitate identifying atypical circumstances and further ensure 
that the use of the categorical exclusion would typically not result in 
individual or cumulative significant environmental effects.

IV. Procedures for Establishing a New Categorical Exclusion

    The process of establishing or revising an agency's NEPA 
procedures, as distinguished from explanatory guidance, is found in 40 
CFR 1507.3(a).

    Each agency shall consult with the Council while developing its 
procedures and before publishing them in the Federal Register for 
comment. Agencies with similar procedures should consult with each 
other and the

[[Page 54819]]

Council to coordinate their procedures, especially for programs 
requesting similar information from applicants. The procedures shall 
be adopted only after an opportunity for public review and after 
review by the Council for conformity with the Act and these 
regulations [40 CFR parts 1500--1508]. The Council shall complete 
its review within 30 days. Once in effect they shall be filed with 
the Council and made readily available to the public. Agencies are 
encouraged to publish explanatory guidance for these regulations and 
their own procedures. Agencies shall continue to review their 
policies and procedures and in consultation with the Council to 
revise them as necessary to ensure full compliance with the purposes 
and provisions of the Act.

    Federal agencies are encouraged to involve CEQ early in the process 
to take advantage of CEQ expertise and assist in coordinating with 
other agencies to make the process as efficient as possible. Federal 
agencies should consult with CEQ on both the proposed categorical 
exclusion and the final categorical exclusion.\10\
---------------------------------------------------------------------------

    \10\ 40 CFR 1507.3.
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    Any proposed categorical exclusion must be made available for 
public review and comment. At a minimum, the CEQ regulations require 
Federal agencies to publish the proposed categorical exclusion in the 
Federal Register and provide a period during which the public may 
submit comments on the proposal.\11\ Federal agencies are encouraged to 
maintain a file of the comments and responses. To maximize the value of 
input from interested parties and assist them in focusing their 
comments, the agency should make information supporting the categorical 
exclusion available to the public.
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    \11\ 40 CFR 1507.3 and 1506.6(b)(2).
---------------------------------------------------------------------------

    Following the public comment period, the Federal agency should 
consult with CEQ and review the nature of any substantive comments 
received and how they were addressed. For consultation to successfully 
conclude, CEQ must provide a written statement that the final proposed 
categorical exclusion was developed in conformity with NEPA and the CEQ 
regulations. CEQ must complete its review within 30 days of receiving 
the final text of the proposed categorical exclusion.
    The final categorical exclusion must then be published in the 
Federal Register. This publication can serve to satisfy the 
requirements that the agency file the categorical exclusion with CEQ, 
and make it readily available to the public.
    The following recommended and required steps establish a 
categorical exclusion as part of the agency NEPA procedures, regardless 
of the format the agency uses for its NEPA procedures:\12\
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    \12\ NEPA and the CEQ regulations do not require agency NEPA 
implementing procedures to be promulgated as regulations through 
formal rulemaking; therefore the rulemaking process is not described 
herein. Agencies that use rulemaking should ensure they comply with 
all appropriate requirements.
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    1. Draft proposed categorical exclusion based on experience 
indicated in supporting information.
    2. Consult with CEQ on draft of proposed categorical exclusion.
    3. Consult other Federal agencies with similar procedures, 
jurisdiction by law, or special expertise regarding the category of 
activities and their effects.
    4. Publish notice of proposed categorical exclusion in the Federal 
Register for public review and comment.
    5. Consider public comments in developing final categorical 
exclusion.
    6. Consult with CEQ on final categorical exclusion to obtain 
determination of conformity with NEPA and the CEQ regulations.
    7. Publish final categorical exclusion in the Federal Register.
    8. File final categorical exclusion with CEQ.
    9. Make final categorical exclusion readily available to the 
public.

V. Public Involvement in Establishing a Categorical Exclusion

    A NEPA process is not required for establishing or revising agency 
NEPA procedures.\13\ However, engaging the public in the environmental 
aspects of Federal decisionmaking is a key aspect of NEPA and an 
opportunity for public involvement beyond publication in the Federal 
Register for review and comment should be considered.\14\ The Federal 
Register notice requesting comment on the proposed categorical 
exclusion should:
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    \13\ Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 
972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-56 (7th Cir. 
2000).
    \14\ ``Agencies shall: (a) Make diligent efforts to involve the 
public in preparing and implementing their NEPA procedures.'' 40 CFR 
1506.6.
---------------------------------------------------------------------------

     Describe the proposed categorical exclusion and provide 
the proposed text.
     Summarize the agency rationale and history for its 
development and advise the public on how to access the agency's 
supporting information and, whenever practicable, include a link to a 
Web site containing the supporting information.\15\
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    \15\ Ready access to all supporting information may minimize the 
need for members of the public to depend on Freedom of Information 
Act requests and enhance the NEPA goals of outreach and disclosure.
---------------------------------------------------------------------------

     Define all applicable terms.
     Summarize how the proposed categorical exclusion fits into 
the existing agency NEPA implementation process.
     Explain how extraordinary circumstances, and possibly 
other factors such as connected actions and cumulative impacts, may 
limit the use of the categorical exclusion.
     Explain available avenues for public comment and feedback 
on the proposed categorical exclusion.
    When establishing a categorical exclusion the Federal agency should 
tailor the type and length of the public involvement to the nature of 
the proposed category of actions and its perceived environmental 
effects. CEQ encourages Federal agencies to engage interested parties 
such as public interest groups, Federal NEPA contacts at other 
agencies, consultants, and Tribal, State, and local government agencies 
to share relevant data, information and concerns. The methods noted in 
40 CFR 1506.6 and other public involvement techniques such as focus 
groups, meetings, e-mail exchanges, conference calls, and Web-based 
forums can be used to stimulate public involvement.

VI. Using an Established Categorical Exclusion

    The CEQ regulations do not address documentation or public 
involvement for using a categorical exclusion. CEQ guidance states:

    ``(T)he Council believes that sufficient information will 
usually be available during the course of normal project development 
to determine the need for an EIS and further that the agency's 
administrative record will clearly document the basis for its 
decision. Accordingly, the Council strongly discourages procedures 
that would require the preparation of additional paperwork to 
document that an activity has been categorically excluded.\16\
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    \16\ Council on Environmental Quality, ``Guidance Regarding NEPA 
Regulations'', 48 FR 34263 (July 28, 1983), available at http://
www.nepa.gov/nepa/regs/1983/1983guid.htm.

A. Documentation

    Each Federal agency should decide if a categorical exclusion 
determination warrants preparing additional paperwork and, if so, how 
much documentation is appropriate. Documentation is an important 
component of any adequate administrative record. The extent of the 
documentation should be related to the type of action involved, the 
potential for extraordinary circumstances, and compliance with other 
laws, regulations, and policies.
    A Federal agency may decide to create a concise record for an 
action where

[[Page 54820]]

there are reasonable questions regarding the existence of extraordinary 
circumstances that may create the potential for the use of the 
categorical exclusion to be questioned. If a record is prepared, it 
should cite the categorical exclusion used and show that the agency 
considered: (1) How the action fits within the class of actions 
described in the categorical exclusion, and (2) whether there are any 
extraordinary circumstances that would preclude the project or proposed 
action from qualifying as a categorically excluded action.
    Some courts have required documentation to demonstrate that a 
Federal agency has considered extraordinary circumstances in cases 
where the absence of extraordinary circumstances is not obvious.\17\ 
Documenting the use of a categorical exclusion facilitates judicial 
review under the Administrative Procedure Act, which requires review to 
be based upon a pre-existing record.\18\
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    \17\ Council on Environmental Quality, ``The NEPA Task Force 
Report to the Council on Environmental Quality--Modernizing NEPA 
Implementation,'' p. 58 (Sept. 2003), available at http://
www.ceq.eh.doe.gov/ntf.
    \18\ The agency determination that an action is categorically 
excluded may be challenged under the Administrative Procedures Act. 
5 U.S.C. 702 et seq.
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    Using a categorical exclusion does not absolve Federal agencies 
from complying with the requirements of other laws, regulations, and 
policies. Documentation created for individual actions or projects may 
be necessary to comply with such requirements. When that is the case, 
all resource analyses and the results of any consultations or 
coordination (e.g., under Endangered Species Act or National Historic 
Preservation Act), should be included or incorporated by reference in 
the administrative record for the action.

B. Public Involvement

    Most Federal agencies do not routinely notify the public when they 
use a categorical exclusion to meet their NEPA responsibilities. In 
situations where there is a high public interest in an action that will 
be categorically excluded, CEQ encourages Federal agencies to involve 
the public in some manner (e.g., notification, scoping), particularly 
when the public can assist the agency in determining whether a proposal 
involves extraordinary circumstances or cumulative impacts.

VII. Periodic Review of Categorical Exclusions

    The CEQ regulations direct Federal agencies to periodically review 
their policies and procedures; however, they do not describe how such a 
review should be conducted.\19\ CEQ encourages Federal agencies to 
develop procedures for identifying and revising categorical exclusions 
that no longer effectively reflect current environmental circumstances 
or where agency procedures, programs, or missions have changed.
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    \19\ 40 CFR 1506.6.
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    A Federal agency can keep a record of its experience by tracking 
information provided by agency field offices.\20\ In such cases, a 
Federal agency review of a categorical exclusion could consist of e-
mails, memos, and letters from field offices that include observations 
of the effects of implemented actions, and public input on actions and 
their environmental effects.
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    \20\ Council on Environmental Quality, ``The NEPA Task Force 
Report to the Council on Environmental Quality--Modernizing NEPA 
Implementation'', p. 63, (Sept. 2003), available at http://
www.ceq.eh.doe.gov/ntf.
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    Another approach to reviewing existing categorical exclusions is 
through a program review. Program reviews can occur at various levels 
(e.g., field office, division office, headquarters office) and on 
various scales (e.g., geographic location, project type, or as a result 
of an interagency agreement). While a Federal agency may choose to 
initiate a program review that specifically focuses on categorical 
exclusions, it is possible that program reviews with a different focus 
may also be able to provide documentation of experience relevant to a 
categorical exclusion.
    There are many good reasons why Federal agencies should perform 
categorical exclusion reviews. They can serve as the impetus for 
expanding the categorical exclusion to include actions not previously 
categorically excluded. They may help identify additional extraordinary 
circumstances. Categorical exclusion reviews may also help a Federal 
agency consider the appropriate documentation when using certain 
categorical exclusions.
    Finally, the rationale and supporting information for establishing 
or documenting experience with using a categorical exclusion can be 
lost when there are inadequate systems and procedures for recording, 
retrieving, and preserving agency documents and administrative records. 
Therefore, Federal agencies may benefit from a review of current 
practices used for maintaining and preserving such records. Measures to 
ensure future availability may include, but not be limited to, 
redundant storage systems (e.g., multiple drives, paper copies), and 
improvements in the agency electronic and hard copy filing and 
retrieval systems.\21\
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    \21\ Council on Environmental Quality, ``The NEPA Task Force 
Report to the Council on Environmental Quality--Modernizing NEPA 
Implementation'', p. 63, (Sept. 2003), available at http://
www.ceq.eh.doe.gov/ntf.
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    Public comments are requested on or before October 27, 2006.

    Dated: September 14, 2006.
James L. Connaughton,
Chairman, Council on Environmental Quality.
[FR Doc. 06-7756 Filed 9-18-06; 8:45 am]
BILLING CODE 3125-W6-P