Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act, 75628-75638 [2010-30017]

Download as PDF 75628 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations COUNCIL ON ENVIRONMENTAL QUALITY 40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508 Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act Council on Environmental Quality. ACTION: Notice of availability. AGENCY: The Council on Environmental Quality (CEQ) is issuing its final guidance on categorical exclusions. This guidance provides methods for substantiating categorical exclusions, clarifies the process for establishing categorical exclusions, outlines how agencies should engage the public when establishing and using categorical exclusions, describes how agencies can document the use of categorical exclusions, and recommends periodic agency review of existing categorical exclusions. A categorical exclusion is a category of actions that a Federal agency determines does not normally result in individually or cumulatively significant environmental effects. This guidance clarifies the rules for establishing, applying, and revising categorical exclusions. It applies to categorical exclusions established by Federal agencies in accordance with CEQ regulations for implementing the procedural provisions of the National Environmental Policy Act. The guidance was developed to assist agencies in making their implementation of the National Environmental Policy Act (NEPA) more transparent and efficient. DATES: The guidance is effective December 6, 2010. FOR FURTHER INFORMATION CONTACT: The Council on Environmental Quality (ATTN: Horst Greczmiel, Associate Director for National Environmental Policy Act Oversight), 722 Jackson Place, NW., Washington, DC 20503. Telephone: (202) 395–5750. SUPPLEMENTARY INFORMATION: This guidance applies to categorical exclusions established by Federal agencies in accordance with § 1507.3 of the CEQ Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 40 CFR parts 1500–1508. Enacted in 1970, the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–4370, is a fundamental tool used to harmonize our environmental, economic, and social aspirations and is a cornerstone of our Nation’s efforts to jdjones on DSK8KYBLC1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 protect the environment. NEPA recognizes that many Federal activities affect the environment and mandates that Federal agencies consider the environmental impacts of their proposed actions before deciding to adopt proposals and take action.1 Many Federal actions do not normally have significant effects on the environment. When agencies identify categories of activities that do not normally have the potential for individually or cumulatively significant impacts, they may establish a categorical exclusion for those activities. The use of categorical exclusions can reduce paperwork and delay, so that more resources are available to assess proposed actions that are likely to have the potential to cause significant environmental effects in an environmental assessment (EA) or environmental impact statement (EIS). This guidance clarifies the rules for establishing categorical exclusions by describing: (1) How to establish or revise a categorical exclusion; (2) how to use public involvement and documentation to help define and substantiate a proposed categorical exclusion; (3) how to apply an established categorical exclusion; (4) how to determine when to prepare documentation and involve the public when applying a categorical exclusion; and (5) how to conduct periodic reviews of categorical exclusions to assure their continued appropriate use and usefulness. On February 18, 2010, the Council on Environmental Quality announced three proposed draft guidance documents to modernize and reinvigorate NEPA, in conjunction with the fortieth anniversary of the statute’s enactment.2 This guidance document is the first of those three to be released in final form. With respect to the other two guidance documents, one addresses when and how Federal agencies should consider greenhouse gas emissions and climate change in their proposed actions, and the other addresses when agencies need to monitor commitments made in EAs and EISs, and how agencies can appropriately use mitigated ‘‘Findings of No Significant Impact.’’ The Federal Register notice announcing the draft categorical exclusion guidance and requesting public comments was 1 A discussion of NEPA applicability is beyond the scope of this guidance. For more information see CEQ, The Citizen’s Guide to the National Environmental Policy Act, available at ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf. 2 For more information on this announcement, see http://www.whitehouse.gov/administration/eop/ ceq/initiatives/nepa. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 published on February 23, 2010.3 CEQ appreciates the thoughtful responses to its request for comments on the draft guidance. Commenters included private citizens, corporations, environmental organizations, trade associations, and State agencies. CEQ received fifty-eight comments, which are available online at http://www.whitehouse.gov/ administration/eop/ceq/initiatives/ nepa/comments and at http:// www.nepa.gov. The comments that suggested editorial revisions and requested clarification of terms are addressed in the text of the final guidance. Comments that raised policy or substantive concerns are grouped into thematic issues and addressed in the following sections of this notice. Process for Developing and Using Categorical Exclusions Many commenters expressed support for CEQ’s categorical exclusion guidance and for the timely and efficient use of categorical exclusions in the NEPA environmental review process to inform agency decisionmaking. Some commenters favored guidance that would limit the use of categorical exclusions. Others expressed concern that this guidance will discourage the appropriate use of categorical exclusions or make the NEPA process more difficult for agencies, and thereby delay agency decisionmaking. This guidance was developed to provide for the consistent, proper, and appropriate development and use of categorical exclusions by Federal agencies. It reinforces the process required to establish categorical exclusions by explaining methods available to substantiate categorical exclusions. It also seeks to ensure opportunities for public involvement and increasing transparency when Federal agencies establish categorical exclusions and subsequently use those categorical exclusions to satisfy their NEPA obligations for specific proposed actions. Additionally, this guidance affords Federal agencies flexibility in developing and implementing categorical exclusions while ensuring that categorical exclusions are administered in compliance with NEPA and the CEQ Regulations. When appropriately established and applied, categorical exclusions expedite the environmental review process for proposals that normally do not require additional analysis and documentation in an EA or an EIS. 3 National Environmental Policy Act (NEPA) Draft Guidance, Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act, 75 FR 8045, Feb. 23, 2010. E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations jdjones on DSK8KYBLC1PROD with RULES Applicability and Limitations Some commenters expressed concern that the guidance creates additional limitations and constraints on the establishment of categorical exclusions, while others expressed unqualified support for using text that constrains the scope of the actions to which a categorical exclusion could apply. The discussion in the guidance of physical, temporal, or environmental factors that would constrain the use of a categorical exclusion is consistent with NEPA and past CEQ guidance. Federal agencies that identify physical, temporal, or environmental constraints in the definition of a proposed category of actions may be able to better ensure that a new or revised categorical exclusion is neither too broadly nor too narrowly defined. Some information regarding implementation of mitigation measures that are an integral part of the proposed actions and how those actions will be carried out may be necessary to adequately understand and describe the category of actions and their projected impacts. A better and more comprehensive description of a category of actions provides clarity and transparency for proposed projects that could be categorically excluded from further analysis and documentation in an EA or an EIS. Public Involvement Some commenters expressed concern over the timeliness and burden of NEPA reviews when there is greater public involvement. The final guidance makes it clear that CEQ strongly encourages public involvement in the establishment and revision of categorical exclusions. As the guidance explains, engaging the public in the environmental aspects of Federal decisionmaking is a key policy goal of NEPA and the CEQ Regulations. Public involvement is not limited to the provision of information by agencies; it should also include meaningful opportunities for the public to provide comment and feedback on the information made available. Considering recent advances in information technology, agencies should consider employing additional measures to involve the public beyond simply publishing a Federal Register notice as required when an agency seeks to establish new or revised categorical exclusions.4 The perceived environmental effects of the proposed category of actions are 4 See 40 CFR 1506.6(a) (requiring agencies to make diligent efforts to involve the public in preparing and implementing their NEPA procedures). VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 75629 a factor that an agency should consider when it decides whether there is a need for public involvement in determining whether to apply a categorical exclusion. Accordingly, the guidance clarifies that agencies have flexibility when applying categorical exclusions to focus their public involvement on those proposed actions and issues the agency expects to raise environmental issues and concerns that are important to the public. In the final guidance, CEQ uses the terms ‘‘encourage’’ and ‘‘recommend’’ interchangeably. The language of the guidance relating to public engagement reflects CEQ’s authority under NEPA and the CEQ regulations to guide agency development and implementation of agency NEPA procedures. It also reflects the importance of allowing agencies to use their expertise to determine the appropriate level of engagement with the public. The guidance addresses the concerns over timeliness and undue burdens by explaining that the amount of information required to substantiate a proposed new or revised categorical exclusion should be proportionate to the type of activities included in the proposed category of actions. Actions that potentially have little or no impact should not require extensive information or documentation. Determining the extent of substantiation and documentation is ultimately the responsibility of the agency and will vary depending on the nature of the proposed action and the effects associated with the action. The guidance encourages agencies to make use of agency Web sites to provide further clarity and transparency to their NEPA procedures. It also recommends using modern technology to maintain and facilitate the use of documentation in future evaluations and benchmarking. Substantiating and Documenting Categorical Exclusions Some commenters raised the concern that the requirement to substantiate and document categorical exclusions would be burdensome and cause delay. One commenter recommended that the guidance should encourage consultation with State agencies, other Federal agencies with special expertise, and other stakeholders. Another commenter suggested that the guidance permit agencies to consult with industry project proponents that possess information that would be useful in substantiating a categorical exclusion. Along the same lines, another commenter stated that agencies should be encouraged to seek information from the most relevant and reliable sources possible. The guidance has been revised to reflect that, when substantiating and documenting the environmental effects of a category of actions, a Federal agency need not be limited to its own experiences. Instead, the agency should consider information and records from other private and public entities, including other Federal agencies that have experience with the actions covered in a proposed categorical exclusion. The guidance acknowledges that the reliability of scientific information varies according to its source and the rigor with which it was developed, and that it is the responsibility of the agency to determine whether the information reflects accepted knowledge, accurate findings, and experience with the environmental effects relevant to the actions that would be included in the proposed categorical exclusion. Extraordinary Circumstances Several commenters requested clearer and more detailed guidance on the application of extraordinary circumstances. Extraordinary circumstances are appropriately understood as those factors or circumstances that will help an agency identify the situations or environmental settings when an otherwise categorically-excludable action merits further analysis and documentation in an EA or an EIS. Specific comments noted that the determination that an extraordinary circumstance will require additional environmental review in an EA or an EIS should depend not solely on the existence of the extraordinary circumstance but rather on an analysis of its impacts. CEQ agrees with this perspective. For example, when an agency uses a protected resource, such as historic property or threatened and endangered species, as an extraordinary circumstance, the guidance clarifies that whether additional review and documentation of a proposed action’s potential environmental impacts in an EA or an EIS is required is based on the potential for significantly impacting that protected resource. However, CEQ recognizes that some agency NEPA procedures require additional analysis based solely on the existence of an extraordinary circumstance. In such cases, the agencies may define their extraordinary circumstances differently, so that a particular situation, such as the presence of a protected resource, is not considered an extraordinary circumstance per se, but a factor to consider when determining if there are extraordinary circumstances, such as a significant impact to that resource. This PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 75630 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations way of structuring NEPA procedures is also appropriate. What is important is that situations or circumstances that may warrant additional analysis and documentation in an EA or an EIS are fully considered before a categorical exclusion is used. The guidance was also revised to clarify how agencies can use the factors set out in the CEQ Regulations to determine significance. The Federal agencies are ultimately responsible for the determination of specific extraordinary circumstances for a category of actions, as well as the determination of whether to use the significance factors set out in the CEQ Regulations when establishing extraordinary circumstances.5 Agency determinations are informed by the public and CEQ during the development of the categorical exclusions. jdjones on DSK8KYBLC1PROD with RULES Documenting the Use of Categorical Exclusions Commenters were most concerned over the potential for delay and the creation of administrative burdens for projects and programs. The guidance makes it clear that the documentation prepared when categorically excluding an action should be as concise as possible to avoid unnecessary delays and administrative burdens for projects and programs. The guidance explains that each agency should determine the circumstances in which it is appropriate to prepare additional documentation. It also explains that for some activities with little risk of significant environmental effects, there may be no practical need for, or benefit from, preparing any documentation beyond the existing record supporting the underlying categorical exclusion and any administrative record for that activity. The guidance makes it clear that the extent of the documentation prepared is the responsibility of the agency and should be tailored to the type of action involved, the potential for extraordinary circumstances, and compliance requirements of other laws, regulations, and policies. Cumulative Impacts Some commenters were concerned that the guidance overlooked the importance of cumulative effects. As specifically set out in the CEQ Regulations and the final guidance, the consideration of the potential cumulative impacts of proposed actions is an important and integral aspect of the NEPA process. The guidance makes 5 See 40 CFR 1508.27 (defining ‘‘significantly’’ for NEPA purposes in terms of several context and intensity factors for agencies to consider). VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 it clear that both individual and cumulative impacts must be considered when establishing categorical exclusions. With regard to the cumulative impacts of actions that an agency has categorically excluded, the guidance recommends that agencies consider the frequency with which the categorically-excluded actions are applied. For some types of categorical exclusions, it may also be appropriate for the agency to track and periodically assess use of the categorical exclusion to ensure that cumulative impacts do not rise to a level that would warrant further NEPA analysis and documentation. Monitoring Commenters voiced concerns that the guidance would create a new requirement for monitoring. The final guidance makes it clear that any Federal agency program charged with complying with NEPA should develop and maintain sufficient capacity to ensure the validity of NEPA reviews that predict that there will not be significant impacts. The amount of effort and the methods used for assessing environmental effects should be proportionate to the potential effects of the action that is the subject of a proposed categorical exclusion and should ensure that the use of categorical exclusions does not inadvertently result in significant impacts. As the guidance explains, agencies seeking to substantiate new or revised categorical exclusions can rely on the information gathered from monitoring actions the agency took in the past, as well as from monitoring the effects of impact demonstration projects. Relying solely on completed EAs and Findings of No Significant Impact (FONSIs) is not sufficient without information validating the FONSI which was projected in advance of implementation. The guidance makes it clear that FONSIs cannot be relied on as a basis for establishing a categorical exclusion unless the absence of significant environmental effects has been verified through credible monitoring of the implemented activity or other sources of corroborating information. The intensity of monitoring efforts for particular categories of actions or impact demonstration projects is appropriately left to the judgment of the agencies. Furthermore, the guidance explains that in some cases monitoring may not be appropriate and agencies can evaluate other information. Review of Existing Categorical Exclusions Several commenters advocated ‘‘grandfathering’’ existing categorical PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 exclusions. Two other commenters voiced support for the periodic review of agency categorical exclusions and specifically requested that the guidance call for rigorous review of existing categorical exclusions. Two commenters requested that the guidance explicitly provide for public participation during the review process. Several verbal comments focused on the recommended seven year review period and suggested alternative review periods ranging from two to ten years. Several commenters also requested that the guidance describe with greater clarity how the periodic review should be implemented. CEQ believes it is extremely important to review the categorical exclusions already established by the Federal agencies. The fact that an agency’s categorical exclusions were established years ago is all the more reason to review them to ensure that changes in technology, operations, agency missions, and the environment do not call into question the continued use of these categorical exclusions. The guidance also explains the value of such a review. Reviewing categorical exclusions can serve as the impetus for clarifying the actions covered by an existing categorical exclusion. It can also help agencies identify additional extraordinary circumstances and consider the appropriate documentation when using certain categorical exclusions. The guidance states that the review should focus on categorical exclusions that no longer reflect current environmental circumstances or an agency’s policies, procedures, programs, or mission. This guidance recommends that agencies develop a process and timeline to periodically review their categorical exclusions (and extraordinary circumstances) to ensure that their categorical exclusions remain current and appropriate, and that those reviews should be conducted at least every seven years. A seven-year cycle allows the agencies to regularly review categorical exclusions to avoid the use of categorical exclusions that are outdated and no longer appropriate. If the agency believes that a different timeframe is appropriate, the agency should articulate a sound basis for that conclusion, explaining how the alternate timeframe will still allow the agency to avoid the use of categorical exclusions that are outdated and no longer appropriate. As described in the guidance, agencies should use their Web sites to notify the public and CEQ about how and when their reviews of existing categorical exclusions will be conducted. CEQ will perform oversight of agencies’ reviews, beginning with E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations those agencies currently reassessing or experiencing difficulties with implementing their categorical exclusions, as well as with agencies facing challenges to their application of categorical exclusions. The Final Guidance The final guidance is provided here and is available on the National Environmental Policy Act Web site (http://www.nepa.gov) specifically at, ceq.hss.doe.gov/ceq_regulations/ guidance.html. For reasons stated in the preamble, above, CEQ issues the following guidance on establishing, applying, and revising categorical exclusions. MEMORANDUM FOR HEADS OF FEDERAL DEPARTMENTS AND AGENCIES jdjones on DSK8KYBLC1PROD with RULES FROM: NANCY H. SUTLEY Chair Council on Environmental Quality SUBJECT: Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act The Council on Environmental Quality (CEQ) is issuing this guidance for Federal departments and agencies on how to establish, apply, and revise categorical exclusions in accordance with section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the CEQ Regulations for Implementing the Procedural Provisions of NEPA (CEQ Regulations), 40 CFR Parts 1500–1508.6 This guidance explains the requirements of NEPA and the CEQ Regulations, describes CEQ policies, and recommends procedures for agencies to use to ensure that their use of categorical exclusions is consistent with applicable law and regulations.7 The guidance is based on 6 The Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of NEPA (CEQ Regulations), available on www.nepa.gov at ceq.hss.doe.gov/ceq_regulations/ regulations.html. This guidance applies only to categorical exclusions established by Federal agencies in accordance with section 1507.3 of the CEQ Regulations, 40 CFR 1507.3. It does not address categorical exclusions established by statute, as their use is governed by the terms of specific legislation and subsequent interpretation by the agencies charged with the implementation of that statute and NEPA requirements. CEQ encourages agencies to apply their extraordinary circumstances to categorical exclusions established by statute when the statute is silent as to the use and application of extraordinary circumstances. 7 This guidance is not a rule or regulation, and the recommendations it contains may not apply to a particular situation based upon the individual facts and circumstances. This guidance does not change or substitute for any law, regulation, or any other legally binding requirement and is not legally VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 NEPA, the CEQ Regulations, legal precedent and agency NEPA experience and practice. It describes: • How to establish or revise a categorical exclusion; • How to use public involvement and documentation to help define and substantiate a proposed categorical exclusion; • How to apply an established categorical exclusion, and determine when to prepare documentation and involve the public; 8 and • How to conduct periodic reviews of categorical exclusions to assure their continued appropriate use and usefulness. This guidance is designed to afford Federal agencies flexibility in developing and implementing categorical exclusions, while ensuring that categorical exclusions are administered to further the purposes of NEPA and the CEQ Regulations.9 I. Introduction The CEQ Regulations provide basic requirements for establishing and using categorical exclusions. Section 1508.4 of the CEQ Regulations defines a ‘‘categorical exclusion’’ as 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.10 Categories of actions for which exclusions are established can be limited by their terms. Furthermore, the application of a categorical exclusion can be limited by ‘‘extraordinary circumstances.’’ Extraordinary circumstances are factors or circumstances in which a normally excluded action may have a significant environmental effect that then requires further analysis in an environmental enforceable. The use of non-mandatory language such as ‘‘guidance,’’ ‘‘recommend,’’ ‘‘may,’’ ‘‘should,’’ and ‘‘can,’’ is intended to describe CEQ policies and recommendations. The use of mandatory terminology such as ‘‘must’’ and ‘‘required’’ is intended to describe controlling requirements under the terms of NEPA and the CEQ regulations, but this document does not establish legally binding requirements in and of itself. 8 The term ‘‘public’’ in this guidance refers to any individuals, groups, entities or agencies external to the Federal agency analyzing the proposed categorical exclusion or proposed activity. 9 40 CFR 1507.1 (noting that CEQ Regulations intend to allow each agency flexibility in adapting its NEPA implementing procedures to requirements of other applicable laws). 10 Id. at § 1508.4. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 75631 assessment (EA) or an environmental impact statement (EIS).11 Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review. To establish a categorical exclusion, agencies determine whether a proposed activity is one that, on the basis of past experience, normally does not require further environmental review. Once established, categorical exclusions provide an efficient tool to complete the NEPA environmental review process for proposals that normally do not require more resourceintensive EAs or EISs. The use of categorical exclusions can reduce paperwork and delay, so that EAs or EISs are targeted toward proposed actions that truly have the potential to cause significant environmental effects.12 When determining whether to use a categorical exclusion for a proposed activity, a Federal agency must carefully review the description of the proposed action to ensure that it fits within the category of actions described in the categorical exclusion. Next, the agency must consider the specific circumstances associated with the proposed activity, to rule out any extraordinary circumstances that might give rise to significant environmental effects requiring further analysis and documentation in an EA or an EIS.13 In other words, when evaluating whether to apply a categorical exclusion to a proposed activity, an agency must consider the specific circumstances associated with the activity and may not end its review based solely on the determination that the activity fits within the description of the categorical exclusion; rather, the agency must also consider whether there are extraordinary circumstances that would warrant further NEPA review. Even if a proposed activity fits within the definition of a categorical exclusion and does not raise extraordinary circumstances, the CEQ Regulations make clear that an agency can, at its discretion, decide ‘‘to prepare an environmental assessment * * * in order to assist agency planning and decisionmaking.’’ 14 Since Federal agencies began using categorical exclusions in the late 1970s, 11 Id. 12 See id. at §§ 1500.4(p) (recommending use of categorical exclusions as a tool to reduce paperwork), 1500.5(k) (recommending categorical exclusions as a tool to reduce delay). 13 40 CFR 1508.4 (requiring Federal agencies to adopt procedures to ensure that categorical exclusions are not applied to proposed actions involving extraordinary circumstances that might have significant environmental effects). 14 40 CFR 1501.3(b). E:\FR\FM\06DER1.SGM 06DER1 75632 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations the number and scope of categoricallyexcluded activities have expanded significantly. Today, categorical exclusions are the most frequently employed method of complying with NEPA, underscoring the need for this guidance on the promulgation and use of categorical exclusions.15 Appropriate reliance on categorical exclusions provides a reasonable, proportionate, and effective analysis for many proposed actions, helping agencies reduce paperwork and delay. If used inappropriately, categorical exclusions can thwart NEPA’s environmental stewardship goals, by compromising the quality and transparency of agency environmental review and decisionmaking, as well as compromising the opportunity for meaningful public participation and review. II. Establishing and Revising Categorical Exclusions A. Conditions Warranting New or Revised Categorical Exclusions jdjones on DSK8KYBLC1PROD with RULES Federal agencies may establish a new or revised categorical exclusion in a variety of circumstances. For example, an agency may determine that a class of actions—such as payroll processing, data collection, conducting surveys, or installing an electronic security system in a facility—can be categorically excluded because it is not expected to have significant individual or cumulative environmental effects. As discussed further in Section III.A.1, below, agencies may also identify potential new categorical exclusions after the agencies have performed NEPA reviews of a class of proposed actions and found that, when implemented, the actions resulted in no significant environmental impacts. Other categories of actions may become appropriate for categorical exclusions as a result of mission changes. When agencies acquire new responsibilities through legislation or administrative restructuring, they should propose new categorical exclusions after they, or other agencies, gain sufficient experience with the new activities to make a reasoned determination that any resulting environmental impacts are not significant.16 15 See CEQ reports to Congress on the status and progress of NEPA reviews for Recovery Act funded projects and activities, available on http:// www.nepa.gov at ceq.hss.doe.gov/ceq_reports/ recovery_act_reports.html. 16 When legislative or administrative action creates a new agency or restructures an existing agency, the agency should determine if its decisionmaking processes have changed and ensure that its NEPA implementing procedures align the VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 Agencies sometimes employ ‘‘tiering’’ to incorporate findings from NEPA environmental reviews that address broad programs or issues into reviews that subsequently deal with more specific and focused proposed actions.17 Agencies may rely on tiering to make predicate findings about environmental impacts when establishing a categorical exclusion. To the extent that mitigation commitments developed during the broader review become an integral part of the basis for subsequently excluding a proposed category of actions, care must be taken to ensure that those commitments are clearly presented as required design elements in the description of the category of actions being considered for a categorical exclusion. If actions in a proposed categorical exclusion are found to have potentially significant environmental effects, an agency can abandon the proposed categorical exclusion, or revise it to eliminate the potential for significant impacts. This can be done by: (1) Limiting or removing activities included in the categorical exclusion; (2) placing additional constraints on the categorical exclusion’s applicability; or (3) revising or identifying additional applicable extraordinary circumstances. When an agency revises an extraordinary circumstance, it should make sure that the revised version clearly identifies the circumstances when further environmental evaluation in an EA or an EIS is warranted. B. The Text of the Categorical Exclusion In prior guidance, CEQ has generally addressed the crafting of categorical exclusions, encouraging agencies to ‘‘consider broadly defined criteria which characterize types of actions that, based on the agency’s experience, do not cause significant environmental effects,’’ and to ‘‘offer several examples of activities frequently performed by that agency’s personnel which would normally fall in these categories.’’ 18 CEQ’s prior guidance also urges agencies to consider whether the cumulative effects of multiple small actions ‘‘would cause sufficient environmental impact to take the actions out of the categoricallyexcluded class.’’ 19 This guidance expands on CEQ’s earlier guidance, by advising agencies that the text of a NEPA review and other environmental planning processes with agency decisionmaking. 17 40 CFR 1502.4(d), 1502.20, 1508.28. 18 Council on Environmental Quality, ‘‘Guidance Regarding NEPA Regulations,’’ 48 FR 34,263, 34,265, Jul. 28, 1983, available on http:// www.nepa.gov at ceq.hss.doe.gov/nepa/regs/1983/ 1983guid.htm. 19 Id. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 proposed new or revised categorical exclusion should clearly define the eligible category of actions, as well as any physical, temporal, or environmental factors that would constrain its use. Some activities may be variable in their environmental effects, such that they can only be categorically excluded in certain regions, at certain times of the year, or within a certain frequency. For example, because the status and sensitivity of environmental resources varies across the nation or by time of year (e.g., in accordance with a protected species’ breeding season), it may be appropriate to limit the geographic applicability of a categorical exclusion to a specific region or environmental setting. Similarly, it may be appropriate to limit the frequency with which a categorical exclusion is used in a particular area. Categorical exclusions for activities with variable impacts must be carefully described to limit their application to circumstances where the activity has been shown not to have significant individual or cumulative environmental effects. Those limits may be spatial (restricting the extent of the proposed action by distance or area); temporal (restricting the proposed action during certain seasons or nesting periods in a particular setting); or numeric (limiting the number of proposed actions that can be categorically excluded in a given area or timeframe). Federal agencies that identify these constraints can better ensure that a categorical exclusion is neither too broadly nor too narrowly defined. When developing a new or revised categorical exclusion, Federal agencies must be sure the proposed category captures the entire proposed action. Categorical exclusions should not be established or used for a segment or an interdependent part of a larger proposed action. The actions included in the category of actions described in the categorical exclusion must be standalone actions that have independent utility. Agencies are also encouraged to provide representative examples of the types of activities covered in the text of the categorical exclusion, especially for broad categorical exclusions. These examples will provide further clarity and transparency regarding the types of actions covered by the categorical exclusion. C. Extraordinary Circumstances Extraordinary circumstances are appropriately understood as those factors or circumstances that help a Federal agency identify situations or environmental settings that may require E:\FR\FM\06DER1.SGM 06DER1 jdjones on DSK8KYBLC1PROD with RULES Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations an otherwise categorically-excludable action to be further analyzed in an EA or an EIS. Often these factors are similar to those used to evaluate intensity for purposes of determining significance pursuant to section 1508.27(b) of the CEQ Regulations.20 For example, several agencies list as extraordinary circumstances the potential effects on protected species or habitat, or on historic properties listed or eligible for listing in the National Register of Historic Places. When proposing new or revised categorical exclusions, Federal agencies should consider the extraordinary circumstances described in their NEPA procedures to ensure that they adequately account for those situations and settings in which a proposed categorical exclusion should not be applied. An extraordinary circumstance requires the agency to determine how to proceed with the NEPA review. For example, the presence of a factor, such as a threatened or endangered species or a historic resource, could be an extraordinary circumstance, which, depending on the structure of the agency’s NEPA implementing procedures, could either cause the agency to prepare an EA or an EIS, or cause the agency to consider whether the proposed action’s impacts on that factor require additional analysis in an EA or an EIS. In other situations, the extraordinary circumstance could be defined to include both the presence of the factor and the impact on that factor. Either way, agency NEPA implementing procedures should clearly describe the manner in which an agency applies extraordinary circumstances and the circumstances under which additional analysis in an EA or an EIS is warranted. Agencies should review their existing extraordinary circumstances concurrently with the review of their categorical exclusions. If an agency’s existing extraordinary circumstances do not provide sufficient parameters to limit a proposed new or revised categorical exclusion to actions that do not have the potential for significant environmental effects, the agency should identify and propose additional extraordinary circumstances or revise those that will apply to the proposed categorical exclusion. If extensive extraordinary circumstances are needed to limit a proposed categorical exclusion, the agency should also consider whether the proposed categorical exclusion itself is appropriate. Any new or revised extraordinary circumstances must be 20 Id. at § 1508.27(b). VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 issued together with the new or revised categorical exclusion in draft form and then in final form according to the procedures described in Section IV. III. Substantiating a New or Revised Categorical Exclusion Substantiating a new or revised categorical exclusion is basic to good decisionmaking. It serves as the agency’s own administrative record of the underlying reasoning for the categorical exclusion. A key issue confronting Federal agencies is how to substantiate a determination that a proposed new or revised categorical exclusion describes a category of actions that do not individually or cumulatively have a significant effect on the human environment.21 Provided below are methods agencies can use to gather and evaluate information to substantiate proposed new or revised categorical exclusions. A. Gathering Information To Substantiate a Categorical Exclusion The amount of information required to substantiate a categorical exclusion depends on the type of activities included in the proposed category of actions. Actions that are reasonably expected to have little impact (for example, conducting surveys or purchasing small amounts of office supplies consistent with applicable acquisition and environmental standards) should not require extensive supporting information.22 For actions that do not obviously lack significant environmental effects, agencies must gather sufficient information to support establishing a new or revised categorical exclusion. An agency can substantiate a categorical exclusion using the sources of information described below, either alone or in combination.23 21 See id. at §§ 1508.7, 1508.8, 1508.27. should still consider the environmental effects of actions that are taken on a large scale. Agency-wide procurement and personnel actions could have cumulative impacts. For example, purchasing paper with higher recycled content uses less natural resources and will have lesser environmental impacts. See ‘‘Federal Leadership in Environmental, Energy, and Economic Performance,’’ E.O. No. 13,514, 74 FR 52,117, Oct. 8, 2009. 23 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 categorical exclusion. See Information Quality Act, Pub. L. No. 106–554, section 515 (2000), 114 Stat. 2763, 2763A– 153 (codified at 44 U.S.C. 3516 (2001)); see also ‘‘Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, Republication,’’ 60 FR 8452, Feb. 22, 2002, available at http://www.whitehouse.gov/omb/inforeg/ infopoltech.html. Additional laws and regulations that establish obligations that apply or may apply 22 Agencies PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 75633 1. Previously Implemented Actions An agency’s assessment of the environmental effects of previously implemented or ongoing actions is an important source of information to substantiate a categorical exclusion. Such assessment allows the agency’s experience with implementation and operating procedures to be taken into account in developing the proposed categorical exclusion. Agencies can obtain useful substantiating information by monitoring and/or otherwise evaluating the effects of implemented actions that were analyzed in EAs that consistently supported Findings of No Significant Impact. If the evaluation of the implemented action validates the environmental effects (or lack thereof) predicted in the EA, this provides strong support for a proposed categorical exclusion. Care must be taken to ensure that any mitigation measures developed during the EA process are an integral component of the actions considered for inclusion in a proposed categorical exclusion. Implemented actions analyzed in an EIS can also be a useful source of substantiating information if the implemented action has independent utility to the agency, separate and apart from the broader action analyzed in the EIS. The EIS must specifically address the environmental effects of the independent proposed action and determine that those effects are not significant. For example, when a discrete, independent action is analyzed in an EIS as part of a broad management action, an evaluation of the actual effects of that discrete action may support a proposed categorical exclusion for the discrete action. As with actions previously analyzed in EAs, predicted effects (or lack thereof) should be validated through monitoring or other corroborating evidence. Agencies can also identify or substantiate new categorical exclusions and extraordinary circumstances by using auditing and implementation data gathered in accordance with an Environmental Management System or other systems that track environmental performance and the effects of particular actions taken to attain that performance.24 to the processes of establishing and applying categorical exclusions (such as the Federal Records Act) are beyond the scope of this guidance. 24 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. The potential for EMS to support NEPA work is further described in CEQ’s E:\FR\FM\06DER1.SGM Continued 06DER1 75634 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations Agencies should also consider appropriate monitoring or other evaluation of the environmental effects of their categorically-excluded actions, to inform periodic reviews of existing categorical exclusions, as discussed in Section VI, below. jdjones on DSK8KYBLC1PROD with RULES 2. Impact Demonstration Projects When Federal agencies lack experience with a particular category of actions that is being considered for a proposed categorical exclusion, they may undertake impact demonstration projects to assess the environmental effects of those actions. As part of a demonstration project, the Federal agency should monitor the actual environmental effects of the proposed action during and after implementation. The NEPA documentation prepared for impact demonstration projects should explain how the monitoring and analysis results will be used to evaluate the merits of a proposed categorical exclusion. When designing impact demonstration projects, an agency must ensure that the action being evaluated accurately represents the scope, the operational context, and the environmental context of the entire category of actions that will be described in the proposed categorical exclusion. For example, if the proposed categorical exclusion would be used in regions or areas of the country with different environmental settings, a series of impact demonstration projects may be needed in those areas where the categorical exclusion would be used. 3. Information From Professional Staff, Expert Opinions, and Scientific Analyses A Federal agency may rely on the expertise, experience, and judgment of its professional staff as well as outside experts to assess the potential environmental effects of applying proposed categorical exclusions, provided that the experts have knowledge, training, and experience relevant to the implementation and environmental effects of the actions described in the proposed categorical exclusion. The administrative record for the proposed categorical exclusion should document the experts’ credentials (e.g., education, training, certifications, years of related experience) and describe how the experts arrived at their conclusions. Scientific analyses are another good source of information to substantiate a Guidebook, ‘‘Aligning National Environmental Policy Act Processes with Environmental Management Systems’’ (2007), available on http:// www.nepa.gov at ceq.hss.doe.gov/publications/ nepa_and_ems.html. VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 new or revised categorical exclusion. 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 reflects accepted knowledge, accurate findings, and experience relevant to the environmental effects of the actions that would be included in the proposed categorical exclusion. Peer-reviewed findings may be especially useful to support an agency’s scientific analysis, but agencies may also consult professional opinions, reports, and research findings that have not been formally peer-reviewed. Scientific information that has not been externally peer-reviewed may require additional scrutiny and evaluation by the agency. In all cases, findings must be based on high-quality, accurate technical and scientific information.25 4. Benchmarking Other Agencies’ Experiences A Federal agency cannot rely on another agency’s categorical exclusion to support a decision not to prepare an EA or an EIS for its own actions. An agency may, however, substantiate a categorical exclusion of its own based on another agency’s experience with a comparable categorical exclusion and the administrative record developed when the other agency’s categorical exclusion was established. Federal agencies can also substantiate categorical exclusions by benchmarking, or drawing support, from private and public entities that have experience with the actions covered in a proposed categorical exclusion, such as State and local agencies, Tribes, academic and professional institutions, and other Federal agencies. When determining whether it is appropriate to rely on another entity’s experience, an agency must demonstrate that the benchmarked actions are comparable to the actions in a proposed categorical exclusion. The agency can demonstrate this based on: (1) Characteristics of the actions; (2) methods of implementing the actions; (3) frequency of the actions; (4) applicable standard operating procedures or implementing guidance (including extraordinary circumstances); and (5) timing and context, including the environmental settings in which the actions take place. 25 See PO 00000 40 CFR 1500.1(b), 1502.24. Frm 00016 Fmt 4700 Sfmt 4700 B. Evaluating the Information Supporting Categorical Exclusions After gathering substantiating information and determining that the category of actions in the proposed categorical exclusion does not normally result in individually or cumulatively significant environmental effects, a Federal agency should develop findings that demonstrate how it made its determination. These findings should account for similarities and differences between the proposed categorical exclusion and the substantiating information. The findings should describe the method and criteria the agency used to assess the environmental effects of the proposed categorical exclusion. These findings, and the relevant substantiating information, should be maintained in an administrative record that will support: Benchmarking by other agencies (as discussed in Section III.A.4, above); applying the categorical exclusions (as discussed in Section V.A, below); and periodically reviewing the continued viability of the categorical exclusion (as discussed in Section VI, below). These findings should also be made available to the public, at least in preliminary form, as part of the process of seeking public input on the establishment of new or revised categorical exclusions, though the final findings may be revised based on new information received from the public and other sources. IV. Procedures for Establishing a New or Revised Categorical Exclusion Pursuant to section 1507.3(a) of the CEQ Regulations, Federal agencies are required to consult with the public and with CEQ whenever they amend their NEPA procedures, including when they establish new or revised categorical exclusions. An agency can only adopt new or revised NEPA implementing procedures after the public has had notice and an opportunity to comment, and after CEQ has issued a determination that the procedures are in conformity with NEPA and the CEQ regulations. Accordingly, an agency’s process for establishing a new or revised categorical exclusion should include the following steps: • Draft the proposed categorical exclusion based on the agency’s experience and substantiating information; • Consult with CEQ on the proposed categorical exclusion; • Consult with other Federal agencies that conduct similar activities to coordinate with their current procedures, especially for programs E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations requesting similar information from members of the public (e.g., applicants); • Publish a notice of the proposed categorical exclusion in the Federal Register for public review and comment; • Consider public comments; • Consult with CEQ on the public comments received and the proposed final categorical exclusion to obtain CEQ’s written determination of conformity with NEPA and the CEQ Regulations; • Publish the final categorical exclusion in the Federal Register; • File the categorical exclusion with CEQ; and • Make the categorical exclusion readily available to the public through the agency’s Web site and/or other means. A. Consultation With CEQ The CEQ Regulations require agencies to consult with CEQ prior to publishing their proposed NEPA procedures in the Federal Register for public comment. Agencies are encouraged to involve CEQ as early as possible in the process and to enlist CEQ’s expertise and assistance with interagency coordination to make the process as efficient as possible.26 Following the public comment period, the Federal agency must consider the comments received and consult again with CEQ to discuss substantive comments and how they will be addressed. CEQ shall complete its review within thirty (30) days of receiving the final text of the agency’s proposed categorical exclusion. For consultation to successfully conclude, CEQ must provide the agency with a written statement that the categorical exclusion was developed in conformity with NEPA and the CEQ Regulations. Finally, when the Federal agency publishes the final version of the categorical exclusion in the Federal Register and on its established agency Web site, the agency should notify CEQ of such publication so as to satisfy the requirements to file the final categorical exclusion with CEQ and to make the final categorical exclusion readily available to the public.27 jdjones on DSK8KYBLC1PROD with RULES B. Seeking Public Involvement When Establishing or Revising a Categorical Exclusion Engaging the public in the environmental aspects of Federal decisionmaking is a key aspect of NEPA 26 40 CFR 1507.3(a) (requiring agencies with similar programs to consult with one another and with CEQ to coordinate their procedures). 27 Id. VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 and the CEQ Regulations.28 At a minimum, the CEQ Regulations require Federal agencies to make any proposed amendments to their categorical exclusions available for public review and comment in the Federal Register,29 regardless of whether the categorical exclusions are promulgated as regulations through rulemaking, or issued as departmental directives or orders.30 To maximize the value of comments from interested parties, the agency’s Federal Register notice should: • Describe the proposed activities covered by the categorical exclusion and provide the proposed text of the categorical exclusion; • Summarize the information in the agency’s administrative record that was used to substantiate the categorical exclusion, including an evaluation of the information and related findings; 31 • Define all applicable terms; • Describe the extraordinary circumstances that may limit the use of the categorical exclusion; and • Describe the available means for submitting questions and comments about the proposed categorical exclusion (for example, e-mail addresses, mailing addresses, Web site addresses, and names and phone numbers of agency points of contact). 28 National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C. 4321 et seq.; see, e.g., 40 CFR 1506.6(a) (requiring agencies to make diligent efforts to involve the public in preparing and implementing their NEPA procedures); 40 CFR 1507.3(a) (requiring each agency to consult with CEQ while developing its procedures and before publishing them in the Federal Register for comment; providing that an agency’s NEPA procedures shall be adopted only after an opportunity for public review; and providing that, once in effect, the procedures must be made readily available to the public). 29 See 40 CFR 1507.3 (outlining procedural requirements for agencies to establish and revise their NEPA implementing regulations), 1506.6(a) (requiring agencies to involve the public in rulemaking, including public notice and an opportunity to comment). 30 NEPA and the CEQ Regulations do not require agency NEPA implementing procedures, of which categorical exclusions are a key component, to be promulgated as regulations through rulemaking. Agencies should ensure they comply with all appropriate agency requirements for issuing and revising their NEPA implementing procedures. 31 This step is particularly beneficial when the agency determines that the public will view a potential impact as significant, as it provides the agency the opportunity to explain why it believes that impact to be presumptively insignificant. Whenever practicable, the agency should include a link to a Web site containing all the supporting information, evaluations, and findings. Ready access to all supporting information will likely 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. Agencies should consider using their regulatory development tools to assist in maintaining access to supporting information, such as establishing an online docket using http:// www.regulations.gov. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 75635 When establishing or revising a categorical exclusion, agencies should also pursue additional opportunities for public involvement beyond publication in the Federal Register in cases where there is likely to be significant public interest and additional outreach would facilitate public input. The extent of public involvement can be tailored to the nature of the proposed categorical exclusion and the degree of expected public interest. CEQ encourages Federal agencies to engage interested parties such as public interest groups, Federal NEPA contacts at other agencies, Tribal governments and agencies, and State and local governments and agencies. The purpose of this engagement is to share relevant data, information, and concerns. Agencies can involve the public by using the methods noted in section 1506.6 of the CEQ Regulations, as well as other public involvement techniques such as focus groups, e-mail exchanges, conference calls, and Web-based forums. CEQ also strongly encourages Federal agencies to post updates on their official Web sites whenever they issue Federal Register notices for new or revised categorical exclusions. An agency Web site may serve as the primary location where the public learns about agency NEPA implementing procedures and their use, and obtains efficient access to updates and supporting information. Therefore, agencies should ensure that their NEPA implementing procedures and any final revisions or amendments are easily accessed through the agency’s official Web site including when an agency is adding, deleting, or revising the categorical exclusions and/or the extraordinary circumstances in its NEPA implementing procedures. V. Applying an Established Categorical Exclusion When applying a categorical exclusion to a proposed action, Federal agencies face two key decisions: (1) Whether to prepare documentation supporting their determination to use a categorical exclusion for a proposed action; and (2) whether public engagement and disclosure may be useful to inform determinations about using categorical exclusions. A. When To Document Categorical Exclusion Determinations In prior guidance, CEQ has ‘‘strongly discourage[d] procedures that would require the preparation of additional paperwork to document that an activity has been categorically excluded,’’ based on an expectation that ‘‘sufficient information will usually be available E:\FR\FM\06DER1.SGM 06DER1 75636 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations jdjones on DSK8KYBLC1PROD with RULES during the course of normal project development’’ to determine whether an EIS or an EA is needed.32 Moreover, ‘‘the agency’s administrative record (for the proposed action) will clearly document the basis for its decision.’’ 33 This guidance modifies our prior guidance to the extent that it recognizes that each Federal agency should decide—and update its NEPA implementing procedures and guidance to indicate—whether any of its categorical exclusions warrant preparation of additional documentation. Some activities, such as routine personnel actions or purchases of small amounts of supplies, may carry little risk of significant environmental effects, such that there is no practical need for, or benefit from, preparing additional documentation when applying a categorical exclusion to those activities. For those activities, the administrative record for establishing the categorical exclusion and any normal project development documentation may be considered sufficient. For other activities, such as decisions to allow various stages of resource development after a programmatic environmental review, documentation may be appropriate to demonstrate that the proposed action comports with any limitations identified in prior NEPA analysis and that there are no potentially significant impacts expected as a result of extraordinary circumstances. In such cases, the documentation should address proposal-specific factors and show consideration of extraordinary circumstances with regard to the potential for localized impacts. It is up to agencies to decide whether to prepare separate NEPA documentation in such cases or to include this documentation in other project-specific documents that the agency is preparing. In some cases, courts have required documentation to demonstrate that a Federal agency has considered the environmental effects associated with extraordinary circumstances.34 Documenting the application of a categorical exclusion provides the agency the opportunity to demonstrate why its decision to use the categorical exclusion is entitled to deference.35 32 ‘‘Guidance Regarding NEPA Regulations,’’ 48 FR 34,263, 34,265, Jul. 28, 1983, available on http://www.nepa.gov_at ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm. 33 Id. 34 See, e.g., California v. Norton, 311 F.3d 1162, 1175–78 (9th Cir. 2002). 35 The agency determination that an action is categorically excluded may itself be challenged under the Administrative Procedure Act, 5 U.S.C. 501 et seq. VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 Documentation may be necessary to comply with the requirements of other laws, regulations, and policies, such as the Endangered Species Act or the National Historic Preservation Act. When that is the case, all resource analyses and the results of any consultations or coordination should be incorporated by reference in the administrative record developed for the proposed action. Moreover, the nature and severity of the effect on resources subject to additional laws or regulations may be a reason for limiting the use of a categorical exclusion and therefore should, where appropriate, also be addressed in documentation showing how potential extraordinary circumstances were considered and addressed in the decision to use the categorical exclusion. For those categorical exclusions for which an agency determines that documentation is appropriate, the documentation should cite the categorical exclusion being used and show that the agency determined that: (1) The proposed action fits within the category of actions described in the categorical exclusion; and (2) there are no extraordinary circumstances that would preclude the proposed action from being categorically excluded. The extent of the documentation should be tailored to the type of action involved, the potential for extraordinary circumstances and environmental effects, and any applicable requirements of other laws, regulations, and policies. If lengthy documentation is needed to address these aspects, an agency should consider whether it is appropriate to apply the categorical exclusion in that particular situation. In all circumstances, any documentation prepared for a categorical exclusion should be concise. B. When To Seek Public Engagement and Disclosure Most Federal agencies do not routinely notify the public when they use a categorical exclusion to meet their NEPA responsibilities. There are some circumstances, however, where the public may be able to provide an agency with valuable information, such as whether a proposal involves extraordinary circumstances or potentially significant cumulative impacts that can help the agency decide whether to apply a categorical exclusion. CEQ therefore encourages Federal agencies to determine—and specify in their NEPA implementing procedures—those circumstances in which the public should be engaged or notified before a categorical exclusion is used. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 Agencies should utilize information technology to provide the public with access to information about the agency’s NEPA compliance. CEQ strongly recommends that agencies post key information about their NEPA procedures and implementation on a publicly available Web site. The Web site should include: • The text of the categorical exclusions and applicable extraordinary circumstances; • A synopsis of the administrative record supporting the establishment of each categorical exclusion with information on how the public can access the entire administrative record; • Those categorical exclusions which the agency determines are and are not likely to be of interest to the public; 36 and • Information on agencies’ use of categorical exclusions for proposed actions, particularly in those situations where there is a high level of public interest in a proposed action. Where an agency has documented a categorical exclusion, it should also consider posting that documentation online. For example, in 2009, the Department of Energy adopted a policy to post documented categorical exclusion determinations online.37 By adopting a similar policy, other agencies can significantly increase the quality and transparency of their decisionmaking when using categorical exclusions. VI. Periodic Review of Established Categorical Exclusions The CEQ Regulations direct Federal agencies to ‘‘continue to review their policies and procedures and in consultation with [CEQ] to revise them as necessary to ensure full compliance with the purposes and provisions of [NEPA].’’ 38 Many agencies have categorical exclusions that were established many years ago. Some Federal agencies have internal procedures for identifying and revising categorical exclusions that no longer reflect current environmental circumstances, or current agency policies, procedures, programs, or mission. Where an agency’s categorical exclusions have not been regularly 36 Many agencies publish two lists of categorical exclusions: (1) Those which typically do not raise public concerns due to the low risk of potential environmental effects, and (2) those more likely to raise public concerns. 37 See Department of Energy, Categorical Exclusion Determinations, available at http://www.gc.energy.gov/NEPA/ categorical_exclusion_determinations.htm. 38 40 CFR 1507.3. E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations jdjones on DSK8KYBLC1PROD with RULES reviewed, they should be reviewed by the agency as soon as possible. There are several reasons why Federal agencies should periodically review their categorical exclusions. 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 amending its NEPA implementing procedures to expand the description of the category of actions included in the categorical exclusion. An agency could also find that an existing categorical exclusion includes actions that raise the potential for significant environmental effects with some regularity. In those cases, the agency should determine whether to delete the categorical exclusion, or revise it to either limit the category of actions or expand the extraordinary circumstances that limit when the categorical exclusion can be used. Periodic review can also help agencies identify additional factors that should be included in their extraordinary circumstances and consider whether certain categorical exclusions should be documented. Agencies should exercise sound judgment about the appropriateness of categorically excluding activities in light of evolving or changing conditions that might present new or different environmental impacts or risks. The assumptions underlying the nature and impact of activities encompassed by a categorical exclusion may have changed over time. Different technological capacities of permitted activities may present very different risk or impact profiles. This issue was addressed in CEQ’s August 16, 2010 report reviewing the Department of the Interior’s Minerals Management Service’s application of NEPA to the permitting of deepwater oil and gas drilling.39 Agencies should review their categorical exclusions on an established timeframe, beginning with the categorical exclusions that were established earliest and/or the categorical exclusions that may have the greatest potential for significant environmental impacts. This guidance recommends that agencies develop a process and timeline to periodically 39 Council on Environmental Quality, Report Regarding the Mineral Management Service’s National Environmental Policy Act Policies, Practices, and Procedures as They Relate to Outer Continental Shelf Oil and Gas Exploration, available at ceq.hss.doe.gov/current_developments/ docs/CEQ_Report_Reviewing_MMS_OCS_ NEPA_Implementation.pdf (Aug. 2010) at 18–20 (explaining that MMS NEPA review for the Macondo Exploratory Well relied on categorical exclusions established in the 1980s, before deepwater drilling became widespread). VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 review their categorical exclusions (and extraordinary circumstances) to ensure that their categorical exclusions remain current and appropriate, and that those reviews should be conducted at least every seven years. A seven-year cycle allows the agencies to regularly review categorical exclusions to avoid the use of categorical exclusions that are outdated and no longer appropriate. If the agency believes that a different timeframe is appropriate, the agency should articulate a sound basis for that conclusion, explaining how the alternate timeframe will still allow the agency to avoid the use of categorical exclusions that are outdated and no longer appropriate. The agency should publish its process and time period, along with its articulation of a sound basis for periods over seven years, on the agency’s Web site and notify CEQ where on the Web site the review procedures are posted. We recognize that due to competing priorities, resource constraints, or for other reasons, agencies may not always be able to meet these time periods. The fact that a categorical exclusion has not been evaluated within the time established does not invalidate its use for NEPA compliance, as long as such use is consistent with the defined scope of the exclusion and has properly considered any potential extraordinary circumstances. In establishing this review process, agencies should take into account factors including changed circumstances, how frequently the categorical exclusions are used, the extent to which resources and geographic areas are potentially affected, and the expected duration of impacts. The level of scrutiny and evaluation during the review process should be commensurate with a categorically-excluded activity’s potential to cause environmental impacts and the extent to which relevant circumstances have changed since it was issued or last reviewed. Some categorical exclusions, such as for routine purchases or contracting for office-related services, may require minimal review. Other categorical exclusions may require a more thorough reassessment of scope, environmental effects, and extraordinary circumstances, such as when they are tiered to programmatic EAs or EISs that analyzed activities whose underlying circumstances have since changed. To facilitate reviews, the Federal agency offices charged with overseeing their agency’s NEPA compliance should develop and maintain sufficient capacity to periodically review their existing categorical exclusions to ensure PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 75637 that the agency’s prediction of no significant impacts is borne out in practice.40 Agencies can efficiently assess changed circumstances by utilizing a variety of methods such as those recommended in Section III, above, for substantiating new or revised categorical exclusions. These methods include benchmarking, monitoring of previously implemented actions, and consultation with professional staff. The type and extent of monitoring and other information that should be considered in periodic reviews, as well as the particular entity or entities within the agency that would be responsible for gathering this information, will vary depending upon the nature of the actions and their anticipated effects. Consequently, agencies should utilize the expertise, experience, and judgment of agency professional staff when determining the appropriate type and extent of monitoring and other information to consider. This information will help the agency determine whether its categorical exclusions are used appropriately, or whether a categorical exclusion needs to be revised. Agencies can also use this information when they engage stakeholders in developing proposed revisions to categorical exclusions and extraordinary circumstances. Agencies can also facilitate reviews by keeping records of their experiences with certain activities in a number of ways, including tracking information provided by agency field offices.41 In such cases, a Federal agency could conduct its periodic review of an established categorical exclusion by soliciting information from field offices about the observed effects of implemented actions, both from agency personnel and the public. On-theground monitoring to evaluate environmental effects of an agency’s categorically-excluded actions, where appropriate, can also be incorporated into an agency’s procedures for conducting its oversight of ongoing projects and can be included as part of regular site visits to project areas. Agencies can also conduct periodic review of existing categorical exclusions through broader program reviews. Program reviews can occur at various levels (for example, field office, division office, headquarters office) and on various scales (for example, geographic location, project type, or areas identified in an interagency agreement). While a 40 40 CFR 1507.2. on Environmental Quality, The NEPA Task Force Report to the Council on Environmental Quality—Modernizing NEPA Implementation, p. 63 (Sept. 2003), available on http://www.nepa.gov at ceq.hss.doe.gov/ntf/report/index.html. 41 Council E:\FR\FM\06DER1.SGM 06DER1 75638 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations Federal agency may choose to initiate a program review specifically focused on categorical exclusions, it is possible that program reviews with a broader focus may yield information relevant to categorical exclusions and may thus substitute for reviews specifically focused on categorical exclusions. However, the substantial flexibility that agencies have in how they structure their review procedures underscores the importance of ensuring that the review procedures are clear and transparent. In working with agencies on reviewing their existing categorical exclusions, CEQ will look to the actual impacts from activities that have been subject to categorical exclusions, and will consider the extent and scope of agency monitoring and/or other substantiating evidence. As part of its oversight role and responsibilities under NEPA, CEQ will contact agencies following the release of this guidance to ascertain the status of their reviews of existing categorical exclusions. CEQ will make every effort to align its oversight with reviews being conducted by the agency and will begin with those agencies that are currently reassessing their categorical exclusions, as well as with agencies that are experiencing difficulties or facing challenges to their application of categorical exclusions. Finally, it is important to note that the rationale and supporting information for establishing or documenting experience with using a categorical exclusion may be lost if an agency has inadequate procedures for recording, retrieving, and preserving documents and administrative records. Therefore, Federal agencies will benefit from a review of their current practices for maintaining and preserving such records. Measures to ensure future availability could include greater centralization of records, use of modern storage systems and improvements in the agency’s electronic and hard copy filing systems.42 jdjones on DSK8KYBLC1PROD with RULES VII. Conclusion This guidance will help to guide CEQ and the agencies when an agency seeks to propose a new or revised categorical exclusion. It should also guide the agencies when categorical exclusions are used for proposed actions, when reviewing existing categorical exclusions, or when proposing new categorical exclusions. Questions regarding this guidance should be 42 Agencies should be mindful of their obligations to maintain and preserve agency records under the Federal Records Act for maintaining and preserving agency records. 44 U.S.C. 3101 et seq. VerDate Mar<15>2010 14:26 Dec 03, 2010 Jkt 223001 directed to the CEQ Associate Director for NEPA Oversight. Nancy H. Sutley, Chair. [FR Doc. 2010–30017 Filed 12–3–10; 8:45 am] BILLING CODE 3125–W0–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 100218107–0199–01] RIN 0648–XY31 Fisheries Off West Coast States; Modifications of the West Coast Commercial and Recreational Salmon Fisheries; Inseason Actions #12 and #13 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Modification of fishing seasons, gear restrictions, and landing and possession limits; request for comments. AGENCY: NOAA Fisheries announces two inseason actions in the ocean salmon fisheries. Inseason action #12 modified the commercial fishery in the area from the U.S./Canada Border to Cape Falcon, Oregon. Inseason action #13 modified the commercial and recreational fisheries in the area from U.S./Canada Border to Cape Falcon, Oregon. SUMMARY: Inseason actions #12 and #13 were effective on August 6, 2010, and remain in effect until the closing date of the 2010 salmon season announced in the 2010 annual management measures or through additional inseason action. Comments will be accepted through December 21, 2010. ADDRESSES: You may submit comments, identified by 0648–XY31, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http:// www.regulations.gov. • Fax: 206–526–6736, Attn: Peggy Busby. • Mail: 7600 Sand Point Way, NE., Building 1, Seattle, WA, 98115. Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying DATES: PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Peggy Busby, by phone at 206–526– 4323. SUPPLEMENTARY INFORMATION: In the 2010 annual management measures for ocean salmon fisheries (75 FR 24482, May 5, 2010), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada Border to the U.S./Mexico Border, beginning May 1, 2010. The Regional Administrator (RA) consulted with representatives of the Council, Washington Department of Fish and Wildlife, and Oregon Department of Fish and Wildlife on August 5, 2010. The information considered during this consultation related to Chinook and coho salmon catch to date and Chinook and coho salmon catch rates compared to quotas and other management measures established preseason. Inseason action #12 reduced the landing and possession limit for Chinook salmon in the commercial salmon fishery from the U.S./Canada Border to Cape Falcon, Oregon. Previously, inseason action #11 (75 FR 54791, September, 9, 2010) imposed an open period landing and possession limit of 60 Chinook salmon and 50 coho per vessel. Inseason action #12 decreased the Chinook salmon landing and possession limit to 30 Chinook salmon per vessel; the open period landing and possession limit for coho was unchanged by inseason action #12. This action was taken because Chinook salmon catches increased dramatically in the previous week, and there was concern that if the landing limit was not reduced the fishery would quickly exhaust the remaining Chinook salmon quota. On August 5, 2010, the States recommended this action and the RA concurred; inseason action #12 took effect on August 6, 2010. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409 (b)(1)(i). Inseason action #13 modified the quotas for the commercial and recreational fisheries through an inseason trade and transfer of quota; 7,000 coho were transferred from the E:\FR\FM\06DER1.SGM 06DER1

Agencies

[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Rules and Regulations]
[Pages 75628-75638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30017]



[[Page 75628]]

=======================================================================
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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 
1508


Final Guidance for Federal Departments and Agencies on 
Establishing, Applying, and Revising Categorical Exclusions Under the 
National Environmental Policy Act

AGENCY: Council on Environmental Quality.

ACTION: Notice of availability.

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

SUMMARY: The Council on Environmental Quality (CEQ) is issuing its 
final guidance on categorical exclusions. This guidance provides 
methods for substantiating categorical exclusions, clarifies the 
process for establishing categorical exclusions, outlines how agencies 
should engage the public when establishing and using categorical 
exclusions, describes how agencies can document the use of categorical 
exclusions, and recommends periodic agency review of existing 
categorical exclusions. A categorical exclusion is a category of 
actions that a Federal agency determines does not normally result in 
individually or cumulatively significant environmental effects. This 
guidance clarifies the rules for establishing, applying, and revising 
categorical exclusions. It applies to categorical exclusions 
established by Federal agencies in accordance with CEQ regulations for 
implementing the procedural provisions of the National Environmental 
Policy Act. The guidance was developed to assist agencies in making 
their implementation of the National Environmental Policy Act (NEPA) 
more transparent and efficient.

DATES: The guidance is effective December 6, 2010.

FOR FURTHER INFORMATION CONTACT: The Council on Environmental Quality 
(ATTN: Horst Greczmiel, Associate Director for National Environmental 
Policy Act Oversight), 722 Jackson Place, NW., Washington, DC 20503. 
Telephone: (202) 395-5750.

SUPPLEMENTARY INFORMATION: This guidance applies to categorical 
exclusions established by Federal agencies in accordance with Sec.  
1507.3 of the CEQ Regulations for Implementing the Procedural 
Provisions of the National Environmental Policy Act, 40 CFR parts 1500-
1508.
    Enacted in 1970, the National Environmental Policy Act (NEPA), 42 
U.S.C. 4321-4370, is a fundamental tool used to harmonize our 
environmental, economic, and social aspirations and is a cornerstone of 
our Nation's efforts to protect the environment. NEPA recognizes that 
many Federal activities affect the environment and mandates that 
Federal agencies consider the environmental impacts of their proposed 
actions before deciding to adopt proposals and take action.\1\ Many 
Federal actions do not normally have significant effects on the 
environment. When agencies identify categories of activities that do 
not normally have the potential for individually or cumulatively 
significant impacts, they may establish a categorical exclusion for 
those activities. The use of categorical exclusions can reduce 
paperwork and delay, so that more resources are available to assess 
proposed actions that are likely to have the potential to cause 
significant environmental effects in an environmental assessment (EA) 
or environmental impact statement (EIS). This guidance clarifies the 
rules for establishing categorical exclusions by describing: (1) How to 
establish or revise a categorical exclusion; (2) how to use public 
involvement and documentation to help define and substantiate a 
proposed categorical exclusion; (3) how to apply an established 
categorical exclusion; (4) how to determine when to prepare 
documentation and involve the public when applying a categorical 
exclusion; and (5) how to conduct periodic reviews of categorical 
exclusions to assure their continued appropriate use and usefulness.
---------------------------------------------------------------------------

    \1\ A discussion of NEPA applicability is beyond the scope of 
this guidance. For more information see CEQ, The Citizen's Guide to 
the National Environmental Policy Act, available at ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
---------------------------------------------------------------------------

    On February 18, 2010, the Council on Environmental Quality 
announced three proposed draft guidance documents to modernize and 
reinvigorate NEPA, in conjunction with the fortieth anniversary of the 
statute's enactment.\2\ This guidance document is the first of those 
three to be released in final form. With respect to the other two 
guidance documents, one addresses when and how Federal agencies should 
consider greenhouse gas emissions and climate change in their proposed 
actions, and the other addresses when agencies need to monitor 
commitments made in EAs and EISs, and how agencies can appropriately 
use mitigated ``Findings of No Significant Impact.'' The Federal 
Register notice announcing the draft categorical exclusion guidance and 
requesting public comments was published on February 23, 2010.\3\ CEQ 
appreciates the thoughtful responses to its request for comments on the 
draft guidance. Commenters included private citizens, corporations, 
environmental organizations, trade associations, and State agencies. 
CEQ received fifty-eight comments, which are available online at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/comments 
and at http://www.nepa.gov. The comments that suggested editorial 
revisions and requested clarification of terms are addressed in the 
text of the final guidance. Comments that raised policy or substantive 
concerns are grouped into thematic issues and addressed in the 
following sections of this notice.
---------------------------------------------------------------------------

    \2\ For more information on this announcement, see http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.
    \3\ National Environmental Policy Act (NEPA) Draft Guidance, 
Establishing, Applying, and Revising Categorical Exclusions under 
the National Environmental Policy Act, 75 FR 8045, Feb. 23, 2010.
---------------------------------------------------------------------------

Process for Developing and Using Categorical Exclusions

    Many commenters expressed support for CEQ's categorical exclusion 
guidance and for the timely and efficient use of categorical exclusions 
in the NEPA environmental review process to inform agency 
decisionmaking. Some commenters favored guidance that would limit the 
use of categorical exclusions. Others expressed concern that this 
guidance will discourage the appropriate use of categorical exclusions 
or make the NEPA process more difficult for agencies, and thereby delay 
agency decisionmaking.
    This guidance was developed to provide for the consistent, proper, 
and appropriate development and use of categorical exclusions by 
Federal agencies. It reinforces the process required to establish 
categorical exclusions by explaining methods available to substantiate 
categorical exclusions. It also seeks to ensure opportunities for 
public involvement and increasing transparency when Federal agencies 
establish categorical exclusions and subsequently use those categorical 
exclusions to satisfy their NEPA obligations for specific proposed 
actions. Additionally, this guidance affords Federal agencies 
flexibility in developing and implementing categorical exclusions while 
ensuring that categorical exclusions are administered in compliance 
with NEPA and the CEQ Regulations. When appropriately established and 
applied, categorical exclusions expedite the environmental review 
process for proposals that normally do not require additional analysis 
and documentation in an EA or an EIS.

[[Page 75629]]

Applicability and Limitations

    Some commenters expressed concern that the guidance creates 
additional limitations and constraints on the establishment of 
categorical exclusions, while others expressed unqualified support for 
using text that constrains the scope of the actions to which a 
categorical exclusion could apply. The discussion in the guidance of 
physical, temporal, or environmental factors that would constrain the 
use of a categorical exclusion is consistent with NEPA and past CEQ 
guidance.
    Federal agencies that identify physical, temporal, or environmental 
constraints in the definition of a proposed category of actions may be 
able to better ensure that a new or revised categorical exclusion is 
neither too broadly nor too narrowly defined. Some information 
regarding implementation of mitigation measures that are an integral 
part of the proposed actions and how those actions will be carried out 
may be necessary to adequately understand and describe the category of 
actions and their projected impacts. A better and more comprehensive 
description of a category of actions provides clarity and transparency 
for proposed projects that could be categorically excluded from further 
analysis and documentation in an EA or an EIS.

Public Involvement

    Some commenters expressed concern over the timeliness and burden of 
NEPA reviews when there is greater public involvement. The final 
guidance makes it clear that CEQ strongly encourages public involvement 
in the establishment and revision of categorical exclusions. As the 
guidance explains, engaging the public in the environmental aspects of 
Federal decisionmaking is a key policy goal of NEPA and the CEQ 
Regulations. Public involvement is not limited to the provision of 
information by agencies; it should also include meaningful 
opportunities for the public to provide comment and feedback on the 
information made available. Considering recent advances in information 
technology, agencies should consider employing additional measures to 
involve the public beyond simply publishing a Federal Register notice 
as required when an agency seeks to establish new or revised 
categorical exclusions.\4\
---------------------------------------------------------------------------

    \4\ See 40 CFR 1506.6(a) (requiring agencies to make diligent 
efforts to involve the public in preparing and implementing their 
NEPA procedures).
---------------------------------------------------------------------------

    The perceived environmental effects of the proposed category of 
actions are a factor that an agency should consider when it decides 
whether there is a need for public involvement in determining whether 
to apply a categorical exclusion. Accordingly, the guidance clarifies 
that agencies have flexibility when applying categorical exclusions to 
focus their public involvement on those proposed actions and issues the 
agency expects to raise environmental issues and concerns that are 
important to the public.
    In the final guidance, CEQ uses the terms ``encourage'' and 
``recommend'' interchangeably. The language of the guidance relating to 
public engagement reflects CEQ's authority under NEPA and the CEQ 
regulations to guide agency development and implementation of agency 
NEPA procedures. It also reflects the importance of allowing agencies 
to use their expertise to determine the appropriate level of engagement 
with the public.

Substantiating and Documenting Categorical Exclusions

    Some commenters raised the concern that the requirement to 
substantiate and document categorical exclusions would be burdensome 
and cause delay. One commenter recommended that the guidance should 
encourage consultation with State agencies, other Federal agencies with 
special expertise, and other stakeholders. Another commenter suggested 
that the guidance permit agencies to consult with industry project 
proponents that possess information that would be useful in 
substantiating a categorical exclusion. Along the same lines, another 
commenter stated that agencies should be encouraged to seek information 
from the most relevant and reliable sources possible.
    The guidance has been revised to reflect that, when substantiating 
and documenting the environmental effects of a category of actions, a 
Federal agency need not be limited to its own experiences. Instead, the 
agency should consider information and records from other private and 
public entities, including other Federal agencies that have experience 
with the actions covered in a proposed categorical exclusion. The 
guidance acknowledges that the reliability of scientific information 
varies according to its source and the rigor with which it was 
developed, and that it is the responsibility of the agency to determine 
whether the information reflects accepted knowledge, accurate findings, 
and experience with the environmental effects relevant to the actions 
that would be included in the proposed categorical exclusion.
    The guidance addresses the concerns over timeliness and undue 
burdens by explaining that the amount of information required to 
substantiate a proposed new or revised categorical exclusion should be 
proportionate to the type of activities included in the proposed 
category of actions. Actions that potentially have little or no impact 
should not require extensive information or documentation. Determining 
the extent of substantiation and documentation is ultimately the 
responsibility of the agency and will vary depending on the nature of 
the proposed action and the effects associated with the action. The 
guidance encourages agencies to make use of agency Web sites to provide 
further clarity and transparency to their NEPA procedures. It also 
recommends using modern technology to maintain and facilitate the use 
of documentation in future evaluations and benchmarking.

Extraordinary Circumstances

    Several commenters requested clearer and more detailed guidance on 
the application of extraordinary circumstances. Extraordinary 
circumstances are appropriately understood as those factors or 
circumstances that will help an agency identify the situations or 
environmental settings when an otherwise categorically-excludable 
action merits further analysis and documentation in an EA or an EIS. 
Specific comments noted that the determination that an extraordinary 
circumstance will require additional environmental review in an EA or 
an EIS should depend not solely on the existence of the extraordinary 
circumstance but rather on an analysis of its impacts. CEQ agrees with 
this perspective. For example, when an agency uses a protected 
resource, such as historic property or threatened and endangered 
species, as an extraordinary circumstance, the guidance clarifies that 
whether additional review and documentation of a proposed action's 
potential environmental impacts in an EA or an EIS is required is based 
on the potential for significantly impacting that protected resource. 
However, CEQ recognizes that some agency NEPA procedures require 
additional analysis based solely on the existence of an extraordinary 
circumstance. In such cases, the agencies may define their 
extraordinary circumstances differently, so that a particular 
situation, such as the presence of a protected resource, is not 
considered an extraordinary circumstance per se, but a factor to 
consider when determining if there are extraordinary circumstances, 
such as a significant impact to that resource. This

[[Page 75630]]

way of structuring NEPA procedures is also appropriate. What is 
important is that situations or circumstances that may warrant 
additional analysis and documentation in an EA or an EIS are fully 
considered before a categorical exclusion is used.
    The guidance was also revised to clarify how agencies can use the 
factors set out in the CEQ Regulations to determine significance. The 
Federal agencies are ultimately responsible for the determination of 
specific extraordinary circumstances for a category of actions, as well 
as the determination of whether to use the significance factors set out 
in the CEQ Regulations when establishing extraordinary 
circumstances.\5\ Agency determinations are informed by the public and 
CEQ during the development of the categorical exclusions.
---------------------------------------------------------------------------

    \5\ See 40 CFR 1508.27 (defining ``significantly'' for NEPA 
purposes in terms of several context and intensity factors for 
agencies to consider).
---------------------------------------------------------------------------

Documenting the Use of Categorical Exclusions

    Commenters were most concerned over the potential for delay and the 
creation of administrative burdens for projects and programs. The 
guidance makes it clear that the documentation prepared when 
categorically excluding an action should be as concise as possible to 
avoid unnecessary delays and administrative burdens for projects and 
programs. The guidance explains that each agency should determine the 
circumstances in which it is appropriate to prepare additional 
documentation. It also explains that for some activities with little 
risk of significant environmental effects, there may be no practical 
need for, or benefit from, preparing any documentation beyond the 
existing record supporting the underlying categorical exclusion and any 
administrative record for that activity. The guidance makes it clear 
that the extent of the documentation prepared is the responsibility of 
the agency and should be tailored to the type of action involved, the 
potential for extraordinary circumstances, and compliance requirements 
of other laws, regulations, and policies.

Cumulative Impacts

    Some commenters were concerned that the guidance overlooked the 
importance of cumulative effects. As specifically set out in the CEQ 
Regulations and the final guidance, the consideration of the potential 
cumulative impacts of proposed actions is an important and integral 
aspect of the NEPA process. The guidance makes it clear that both 
individual and cumulative impacts must be considered when establishing 
categorical exclusions. With regard to the cumulative impacts of 
actions that an agency has categorically excluded, the guidance 
recommends that agencies consider the frequency with which the 
categorically-excluded actions are applied. For some types of 
categorical exclusions, it may also be appropriate for the agency to 
track and periodically assess use of the categorical exclusion to 
ensure that cumulative impacts do not rise to a level that would 
warrant further NEPA analysis and documentation.

Monitoring

    Commenters voiced concerns that the guidance would create a new 
requirement for monitoring. The final guidance makes it clear that any 
Federal agency program charged with complying with NEPA should develop 
and maintain sufficient capacity to ensure the validity of NEPA reviews 
that predict that there will not be significant impacts. The amount of 
effort and the methods used for assessing environmental effects should 
be proportionate to the potential effects of the action that is the 
subject of a proposed categorical exclusion and should ensure that the 
use of categorical exclusions does not inadvertently result in 
significant impacts.
    As the guidance explains, agencies seeking to substantiate new or 
revised categorical exclusions can rely on the information gathered 
from monitoring actions the agency took in the past, as well as from 
monitoring the effects of impact demonstration projects. Relying solely 
on completed EAs and Findings of No Significant Impact (FONSIs) is not 
sufficient without information validating the FONSI which was projected 
in advance of implementation. The guidance makes it clear that FONSIs 
cannot be relied on as a basis for establishing a categorical exclusion 
unless the absence of significant environmental effects has been 
verified through credible monitoring of the implemented activity or 
other sources of corroborating information. The intensity of monitoring 
efforts for particular categories of actions or impact demonstration 
projects is appropriately left to the judgment of the agencies. 
Furthermore, the guidance explains that in some cases monitoring may 
not be appropriate and agencies can evaluate other information.

Review of Existing Categorical Exclusions

    Several commenters advocated ``grandfathering'' existing 
categorical exclusions. Two other commenters voiced support for the 
periodic review of agency categorical exclusions and specifically 
requested that the guidance call for rigorous review of existing 
categorical exclusions. Two commenters requested that the guidance 
explicitly provide for public participation during the review process. 
Several verbal comments focused on the recommended seven year review 
period and suggested alternative review periods ranging from two to ten 
years. Several commenters also requested that the guidance describe 
with greater clarity how the periodic review should be implemented.
    CEQ believes it is extremely important to review the categorical 
exclusions already established by the Federal agencies. The fact that 
an agency's categorical exclusions were established years ago is all 
the more reason to review them to ensure that changes in technology, 
operations, agency missions, and the environment do not call into 
question the continued use of these categorical exclusions. The 
guidance also explains the value of such a review. Reviewing 
categorical exclusions can serve as the impetus for clarifying the 
actions covered by an existing categorical exclusion. It can also help 
agencies identify additional extraordinary circumstances and consider 
the appropriate documentation when using certain categorical 
exclusions. The guidance states that the review should focus on 
categorical exclusions that no longer reflect current environmental 
circumstances or an agency's policies, procedures, programs, or 
mission.
    This guidance recommends that agencies develop a process and 
timeline to periodically review their categorical exclusions (and 
extraordinary circumstances) to ensure that their categorical 
exclusions remain current and appropriate, and that those reviews 
should be conducted at least every seven years. A seven-year cycle 
allows the agencies to regularly review categorical exclusions to avoid 
the use of categorical exclusions that are outdated and no longer 
appropriate. If the agency believes that a different timeframe is 
appropriate, the agency should articulate a sound basis for that 
conclusion, explaining how the alternate timeframe will still allow the 
agency to avoid the use of categorical exclusions that are outdated and 
no longer appropriate. As described in the guidance, agencies should 
use their Web sites to notify the public and CEQ about how and when 
their reviews of existing categorical exclusions will be conducted. CEQ 
will perform oversight of agencies' reviews, beginning with

[[Page 75631]]

those agencies currently reassessing or experiencing difficulties with 
implementing their categorical exclusions, as well as with agencies 
facing challenges to their application of categorical exclusions.

The Final Guidance

    The final guidance is provided here and is available on the 
National Environmental Policy Act Web site (http://www.nepa.gov) 
specifically at, ceq.hss.doe.gov/ceq_regulations/guidance.html. For 
reasons stated in the preamble, above, CEQ issues the following 
guidance on establishing, applying, and revising categorical 
exclusions.

MEMORANDUM FOR HEADS OF FEDERAL DEPARTMENTS AND AGENCIES

FROM: NANCY H. SUTLEY
Chair
Council on Environmental Quality
SUBJECT: Final Guidance for Federal Departments and Agencies on 
Establishing, Applying, and Revising Categorical Exclusions under the 
National Environmental Policy Act
    The Council on Environmental Quality (CEQ) is issuing this guidance 
for Federal departments and agencies on how to establish, apply, and 
revise categorical exclusions in accordance with section 102 of the 
National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the CEQ 
Regulations for Implementing the Procedural Provisions of NEPA (CEQ 
Regulations), 40 CFR Parts 1500-1508.\6\ This guidance explains the 
requirements of NEPA and the CEQ Regulations, describes CEQ policies, 
and recommends procedures for agencies to use to ensure that their use 
of categorical exclusions is consistent with applicable law and 
regulations.\7\ The guidance is based on NEPA, the CEQ Regulations, 
legal precedent and agency NEPA experience and practice. It describes:
---------------------------------------------------------------------------

    \6\ The Council on Environmental Quality (CEQ) Regulations for 
Implementing the Procedural Provisions of NEPA (CEQ Regulations), 
available on www.nepa.gov at ceq.hss.doe.gov/ceq_regulations/regulations.html. This guidance applies only to categorical 
exclusions established by Federal agencies in accordance with 
section 1507.3 of the CEQ Regulations, 40 CFR 1507.3. It does not 
address categorical exclusions established by statute, as their use 
is governed by the terms of specific legislation and subsequent 
interpretation by the agencies charged with the implementation of 
that statute and NEPA requirements. CEQ encourages agencies to apply 
their extraordinary circumstances to categorical exclusions 
established by statute when the statute is silent as to the use and 
application of extraordinary circumstances.
    \7\ This guidance is not a rule or regulation, and the 
recommendations it contains may not apply to a particular situation 
based upon the individual facts and circumstances. This guidance 
does not change or substitute for any law, regulation, or any other 
legally binding requirement and is not legally enforceable. The use 
of non-mandatory language such as ``guidance,'' ``recommend,'' 
``may,'' ``should,'' and ``can,'' is intended to describe CEQ 
policies and recommendations. The use of mandatory terminology such 
as ``must'' and ``required'' is intended to describe controlling 
requirements under the terms of NEPA and the CEQ regulations, but 
this document does not establish legally binding requirements in and 
of itself.
---------------------------------------------------------------------------

     How to establish or revise a categorical exclusion;
     How to use public involvement and documentation to help 
define and substantiate a proposed categorical exclusion;
     How to apply an established categorical exclusion, and 
determine when to prepare documentation and involve the public; \8\ and
---------------------------------------------------------------------------

    \8\ The term ``public'' in this guidance refers to any 
individuals, groups, entities or agencies external to the Federal 
agency analyzing the proposed categorical exclusion or proposed 
activity.
---------------------------------------------------------------------------

     How to conduct periodic reviews of categorical exclusions 
to assure their continued appropriate use and usefulness.

This guidance is designed to afford Federal agencies flexibility in 
developing and implementing categorical exclusions, while ensuring that 
categorical exclusions are administered to further the purposes of NEPA 
and the CEQ Regulations.\9\
---------------------------------------------------------------------------

    \9\ 40 CFR 1507.1 (noting that CEQ Regulations intend to allow 
each agency flexibility in adapting its NEPA implementing procedures 
to requirements of other applicable laws).
---------------------------------------------------------------------------

I. Introduction

    The CEQ Regulations provide basic requirements for establishing and 
using categorical exclusions. Section 1508.4 of the CEQ Regulations 
defines a ``categorical exclusion'' as

    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.\10\
---------------------------------------------------------------------------

    \10\ Id. at Sec.  1508.4.

Categories of actions for which exclusions are established can be 
limited by their terms. Furthermore, the application of a categorical 
exclusion can be limited by ``extraordinary circumstances.'' 
Extraordinary circumstances are factors or circumstances in which a 
normally excluded action may have a significant environmental effect 
that then requires further analysis in an environmental assessment (EA) 
or an environmental impact statement (EIS).\11\
---------------------------------------------------------------------------

    \11\ Id.
---------------------------------------------------------------------------

    Categorical exclusions are not exemptions or waivers of NEPA 
review; they are simply one type of NEPA review. To establish a 
categorical exclusion, agencies determine whether a proposed activity 
is one that, on the basis of past experience, normally does not require 
further environmental review. Once established, categorical exclusions 
provide an efficient tool to complete the NEPA environmental review 
process for proposals that normally do not require more resource-
intensive EAs or EISs. The use of categorical exclusions can reduce 
paperwork and delay, so that EAs or EISs are targeted toward proposed 
actions that truly have the potential to cause significant 
environmental effects.\12\
---------------------------------------------------------------------------

    \12\ See id. at Sec. Sec.  1500.4(p) (recommending use of 
categorical exclusions as a tool to reduce paperwork), 1500.5(k) 
(recommending categorical exclusions as a tool to reduce delay).
---------------------------------------------------------------------------

    When determining whether to use a categorical exclusion for a 
proposed activity, a Federal agency must carefully review the 
description of the proposed action to ensure that it fits within the 
category of actions described in the categorical exclusion. Next, the 
agency must consider the specific circumstances associated with the 
proposed activity, to rule out any extraordinary circumstances that 
might give rise to significant environmental effects requiring further 
analysis and documentation in an EA or an EIS.\13\ In other words, when 
evaluating whether to apply a categorical exclusion to a proposed 
activity, an agency must consider the specific circumstances associated 
with the activity and may not end its review based solely on the 
determination that the activity fits within the description of the 
categorical exclusion; rather, the agency must also consider whether 
there are extraordinary circumstances that would warrant further NEPA 
review. Even if a proposed activity fits within the definition of a 
categorical exclusion and does not raise extraordinary circumstances, 
the CEQ Regulations make clear that an agency can, at its discretion, 
decide ``to prepare an environmental assessment * * * in order to 
assist agency planning and decisionmaking.'' \14\
---------------------------------------------------------------------------

    \13\ 40 CFR 1508.4 (requiring Federal agencies to adopt 
procedures to ensure that categorical exclusions are not applied to 
proposed actions involving extraordinary circumstances that might 
have significant environmental effects).
    \14\ 40 CFR 1501.3(b).
---------------------------------------------------------------------------

    Since Federal agencies began using categorical exclusions in the 
late 1970s,

[[Page 75632]]

the number and scope of categorically-excluded activities have expanded 
significantly. Today, categorical exclusions are the most frequently 
employed method of complying with NEPA, underscoring the need for this 
guidance on the promulgation and use of categorical exclusions.\15\ 
Appropriate reliance on categorical exclusions provides a reasonable, 
proportionate, and effective analysis for many proposed actions, 
helping agencies reduce paperwork and delay. If used inappropriately, 
categorical exclusions can thwart NEPA's environmental stewardship 
goals, by compromising the quality and transparency of agency 
environmental review and decisionmaking, as well as compromising the 
opportunity for meaningful public participation and review.
---------------------------------------------------------------------------

    \15\ See CEQ reports to Congress on the status and progress of 
NEPA reviews for Recovery Act funded projects and activities, 
available on http://www.nepa.gov at ceq.hss.doe.gov/ceq_reports/recovery_act_reports.html.
---------------------------------------------------------------------------

II. Establishing and Revising Categorical Exclusions

A. Conditions Warranting New or Revised Categorical Exclusions

    Federal agencies may establish a new or revised categorical 
exclusion in a variety of circumstances. For example, an agency may 
determine that a class of actions--such as payroll processing, data 
collection, conducting surveys, or installing an electronic security 
system in a facility--can be categorically excluded because it is not 
expected to have significant individual or cumulative environmental 
effects. As discussed further in Section III.A.1, below, agencies may 
also identify potential new categorical exclusions after the agencies 
have performed NEPA reviews of a class of proposed actions and found 
that, when implemented, the actions resulted in no significant 
environmental impacts. Other categories of actions may become 
appropriate for categorical exclusions as a result of mission changes. 
When agencies acquire new responsibilities through legislation or 
administrative restructuring, they should propose new categorical 
exclusions after they, or other agencies, gain sufficient experience 
with the new activities to make a reasoned determination that any 
resulting environmental impacts are not significant.\16\
---------------------------------------------------------------------------

    \16\ When legislative or administrative action creates a new 
agency or restructures an existing agency, the agency should 
determine if its decisionmaking processes have changed and ensure 
that its NEPA implementing procedures align the NEPA review and 
other environmental planning processes with agency decisionmaking.
---------------------------------------------------------------------------

    Agencies sometimes employ ``tiering'' to incorporate findings from 
NEPA environmental reviews that address broad programs or issues into 
reviews that subsequently deal with more specific and focused proposed 
actions.\17\ Agencies may rely on tiering to make predicate findings 
about environmental impacts when establishing a categorical exclusion. 
To the extent that mitigation commitments developed during the broader 
review become an integral part of the basis for subsequently excluding 
a proposed category of actions, care must be taken to ensure that those 
commitments are clearly presented as required design elements in the 
description of the category of actions being considered for a 
categorical exclusion.
---------------------------------------------------------------------------

    \17\ 40 CFR 1502.4(d), 1502.20, 1508.28.
---------------------------------------------------------------------------

    If actions in a proposed categorical exclusion are found to have 
potentially significant environmental effects, an agency can abandon 
the proposed categorical exclusion, or revise it to eliminate the 
potential for significant impacts. This can be done by: (1) Limiting or 
removing activities included in the categorical exclusion; (2) placing 
additional constraints on the categorical exclusion's applicability; or 
(3) revising or identifying additional applicable extraordinary 
circumstances. When an agency revises an extraordinary circumstance, it 
should make sure that the revised version clearly identifies the 
circumstances when further environmental evaluation in an EA or an EIS 
is warranted.

B. The Text of the Categorical Exclusion

    In prior guidance, CEQ has generally addressed the crafting of 
categorical exclusions, encouraging agencies to ``consider broadly 
defined criteria which characterize types of actions that, based on the 
agency's experience, do not cause significant environmental effects,'' 
and to ``offer several examples of activities frequently performed by 
that agency's personnel which would normally fall in these 
categories.'' \18\ CEQ's prior guidance also urges agencies to consider 
whether the cumulative effects of multiple small actions ``would cause 
sufficient environmental impact to take the actions out of the 
categorically-excluded class.'' \19\ This guidance expands on CEQ's 
earlier guidance, by advising agencies that the text of a proposed new 
or revised categorical exclusion should clearly define the eligible 
category of actions, as well as any physical, temporal, or 
environmental factors that would constrain its use.
---------------------------------------------------------------------------

    \18\ Council on Environmental Quality, ``Guidance Regarding NEPA 
Regulations,'' 48 FR 34,263, 34,265, Jul. 28, 1983, available on 
http://www.nepa.gov at ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm.
    \19\ Id.
---------------------------------------------------------------------------

    Some activities may be variable in their environmental effects, 
such that they can only be categorically excluded in certain regions, 
at certain times of the year, or within a certain frequency. For 
example, because the status and sensitivity of environmental resources 
varies across the nation or by time of year (e.g., in accordance with a 
protected species' breeding season), it may be appropriate to limit the 
geographic applicability of a categorical exclusion to a specific 
region or environmental setting. Similarly, it may be appropriate to 
limit the frequency with which a categorical exclusion is used in a 
particular area. Categorical exclusions for activities with variable 
impacts must be carefully described to limit their application to 
circumstances where the activity has been shown not to have significant 
individual or cumulative environmental effects. Those limits may be 
spatial (restricting the extent of the proposed action by distance or 
area); temporal (restricting the proposed action during certain seasons 
or nesting periods in a particular setting); or numeric (limiting the 
number of proposed actions that can be categorically excluded in a 
given area or timeframe). Federal agencies that identify these 
constraints can better ensure that a categorical exclusion is neither 
too broadly nor too narrowly defined.
    When developing a new or revised categorical exclusion, Federal 
agencies must be sure the proposed category captures the entire 
proposed action. Categorical exclusions should not be established or 
used for a segment or an interdependent part of a larger proposed 
action. The actions included in the category of actions described in 
the categorical exclusion must be stand-alone actions that have 
independent utility. Agencies are also encouraged to provide 
representative examples of the types of activities covered in the text 
of the categorical exclusion, especially for broad categorical 
exclusions. These examples will provide further clarity and 
transparency regarding the types of actions covered by the categorical 
exclusion.

C. Extraordinary Circumstances

    Extraordinary circumstances are appropriately understood as those 
factors or circumstances that help a Federal agency identify situations 
or environmental settings that may require

[[Page 75633]]

an otherwise categorically-excludable action to be further analyzed in 
an EA or an EIS. Often these factors are similar to those used to 
evaluate intensity for purposes of determining significance pursuant to 
section 1508.27(b) of the CEQ Regulations.\20\ For example, several 
agencies list as extraordinary circumstances the potential effects on 
protected species or habitat, or on historic properties listed or 
eligible for listing in the National Register of Historic Places.
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    \20\ Id. at Sec.  1508.27(b).
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    When proposing new or revised categorical exclusions, Federal 
agencies should consider the extraordinary circumstances described in 
their NEPA procedures to ensure that they adequately account for those 
situations and settings in which a proposed categorical exclusion 
should not be applied. An extraordinary circumstance requires the 
agency to determine how to proceed with the NEPA review. For example, 
the presence of a factor, such as a threatened or endangered species or 
a historic resource, could be an extraordinary circumstance, which, 
depending on the structure of the agency's NEPA implementing 
procedures, could either cause the agency to prepare an EA or an EIS, 
or cause the agency to consider whether the proposed action's impacts 
on that factor require additional analysis in an EA or an EIS. In other 
situations, the extraordinary circumstance could be defined to include 
both the presence of the factor and the impact on that factor. Either 
way, agency NEPA implementing procedures should clearly describe the 
manner in which an agency applies extraordinary circumstances and the 
circumstances under which additional analysis in an EA or an EIS is 
warranted.
    Agencies should review their existing extraordinary circumstances 
concurrently with the review of their categorical exclusions. If an 
agency's existing extraordinary circumstances do not provide sufficient 
parameters to limit a proposed new or revised categorical exclusion to 
actions that do not have the potential for significant environmental 
effects, the agency should identify and propose additional 
extraordinary circumstances or revise those that will apply to the 
proposed categorical exclusion. If extensive extraordinary 
circumstances are needed to limit a proposed categorical exclusion, the 
agency should also consider whether the proposed categorical exclusion 
itself is appropriate. Any new or revised extraordinary circumstances 
must be issued together with the new or revised categorical exclusion 
in draft form and then in final form according to the procedures 
described in Section IV.

III. Substantiating a New or Revised Categorical Exclusion

    Substantiating a new or revised categorical exclusion is basic to 
good decisionmaking. It serves as the agency's own administrative 
record of the underlying reasoning for the categorical exclusion. A key 
issue confronting Federal agencies is how to substantiate a 
determination that a proposed new or revised categorical exclusion 
describes a category of actions that do not individually or 
cumulatively have a significant effect on the human environment.\21\ 
Provided below are methods agencies can use to gather and evaluate 
information to substantiate proposed new or revised categorical 
exclusions.
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    \21\ See id. at Sec. Sec.  1508.7, 1508.8, 1508.27.
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A. Gathering Information To Substantiate a Categorical Exclusion

    The amount of information required to substantiate a categorical 
exclusion depends on the type of activities included in the proposed 
category of actions. Actions that are reasonably expected to have 
little impact (for example, conducting surveys or purchasing small 
amounts of office supplies consistent with applicable acquisition and 
environmental standards) should not require extensive supporting 
information.\22\ For actions that do not obviously lack significant 
environmental effects, agencies must gather sufficient information to 
support establishing a new or revised categorical exclusion. An agency 
can substantiate a categorical exclusion using the sources of 
information described below, either alone or in combination.\23\
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    \22\ Agencies should still consider the environmental effects of 
actions that are taken on a large scale. Agency-wide procurement and 
personnel actions could have cumulative impacts. For example, 
purchasing paper with higher recycled content uses less natural 
resources and will have lesser environmental impacts. See ``Federal 
Leadership in Environmental, Energy, and Economic Performance,'' 
E.O. No. 13,514, 74 FR 52,117, Oct. 8, 2009.
    \23\ 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 categorical exclusion. 
See Information Quality Act, Pub. L. No. 106-554, section 515 
(2000), 114 Stat. 2763, 2763A-153 (codified at 44 U.S.C. 3516 
(2001)); see also ``Guidelines for Ensuring and Maximizing the 
Quality, Objectivity, Utility, and Integrity of Information 
Disseminated by Federal Agencies, Republication,'' 60 FR 8452, Feb. 
22, 2002, available at http://www.whitehouse.gov/omb/inforeg/infopoltech.html. Additional laws and regulations that establish 
obligations that apply or may apply to the processes of establishing 
and applying categorical exclusions (such as the Federal Records 
Act) are beyond the scope of this guidance.
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1. Previously Implemented Actions
    An agency's assessment of the environmental effects of previously 
implemented or ongoing actions is an important source of information to 
substantiate a categorical exclusion. Such assessment allows the 
agency's experience with implementation and operating procedures to be 
taken into account in developing the proposed categorical exclusion.
    Agencies can obtain useful substantiating information by monitoring 
and/or otherwise evaluating the effects of implemented actions that 
were analyzed in EAs that consistently supported Findings of No 
Significant Impact. If the evaluation of the implemented action 
validates the environmental effects (or lack thereof) predicted in the 
EA, this provides strong support for a proposed categorical exclusion. 
Care must be taken to ensure that any mitigation measures developed 
during the EA process are an integral component of the actions 
considered for inclusion in a proposed categorical exclusion.
    Implemented actions analyzed in an EIS can also be a useful source 
of substantiating information if the implemented action has independent 
utility to the agency, separate and apart from the broader action 
analyzed in the EIS. The EIS must specifically address the 
environmental effects of the independent proposed action and determine 
that those effects are not significant. For example, when a discrete, 
independent action is analyzed in an EIS as part of a broad management 
action, an evaluation of the actual effects of that discrete action may 
support a proposed categorical exclusion for the discrete action. As 
with actions previously analyzed in EAs, predicted effects (or lack 
thereof) should be validated through monitoring or other corroborating 
evidence.
    Agencies can also identify or substantiate new categorical 
exclusions and extraordinary circumstances by using auditing and 
implementation data gathered in accordance with an Environmental 
Management System or other systems that track environmental performance 
and the effects of particular actions taken to attain that 
performance.\24\
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    \24\ 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. The potential for EMS to support NEPA work is 
further described in CEQ's Guidebook, ``Aligning National 
Environmental Policy Act Processes with Environmental Management 
Systems'' (2007), available on http://www.nepa.gov at 
ceq.hss.doe.gov/publications/nepa_and_ems.html.

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[[Page 75634]]

    Agencies should also consider appropriate monitoring or other 
evaluation of the environmental effects of their categorically-excluded 
actions, to inform periodic reviews of existing categorical exclusions, 
as discussed in Section VI, below.
2. Impact Demonstration Projects
    When Federal agencies lack experience with a particular category of 
actions that is being considered for a proposed categorical exclusion, 
they may undertake impact demonstration projects to assess the 
environmental effects of those actions. As part of a demonstration 
project, the Federal agency should monitor the actual environmental 
effects of the proposed action during and after implementation. The 
NEPA documentation prepared for impact demonstration projects should 
explain how the monitoring and analysis results will be used to 
evaluate the merits of a proposed categorical exclusion. When designing 
impact demonstration projects, an agency must ensure that the action 
being evaluated accurately represents the scope, the operational 
context, and the environmental context of the entire category of 
actions that will be described in the proposed categorical exclusion. 
For example, if the proposed categorical exclusion would be used in 
regions or areas of the country with different environmental settings, 
a series of impact demonstration projects may be needed in those areas 
where the categorical exclusion would be used.
3. Information From Professional Staff, Expert Opinions, and Scientific 
Analyses
    A Federal agency may rely on the expertise, experience, and 
judgment of its professional staff as well as outside experts to assess 
the potential environmental effects of applying proposed categorical 
exclusions, provided that the experts have knowledge, training, and 
experience relevant to the implementation and environmental effects of 
the actions described in the proposed categorical exclusion. The 
administrative record for the proposed categorical exclusion should 
document the experts' credentials (e.g., education, training, 
certifications, years of related experience) and describe how the 
experts arrived at their conclusions.
    Scientific analyses are another good source of information to 
substantiate a new or revised categorical exclusion. 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 reflects accepted 
knowledge, accurate findings, and experience relevant to the 
environmental effects of the actions that would be included in the 
proposed categorical exclusion. Peer-reviewed findings may be 
especially useful to support an agency's scientific analysis, but 
agencies may also consult professional opinions, reports, and research 
findings that have not been formally peer-reviewed. Scientific 
information that has not been externally peer-reviewed may require 
additional scrutiny and evaluation by the agency. In all cases, 
findings must be based on high-quality, accurate technical and 
scientific information.\25\
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    \25\ See 40 CFR 1500.1(b), 1502.24.
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4. Benchmarking Other Agencies' Experiences
    A Federal agency cannot rely on another agency's categorical 
exclusion to support a decision not to prepare an EA or an EIS for its 
own actions. An agency may, however, substantiate a categorical 
exclusion of its own based on another agency's experience with a 
comparable categorical exclusion and the administrative record 
developed when the other agency's categorical exclusion was 
established. Federal agencies can also substantiate categorical 
exclusions by benchmarking, or drawing support, from private and public 
entities that have experience with the actions covered in a proposed 
categorical exclusion, such as State and local agencies, Tribes, 
academic and professional institutions, and other Federal agencies.
    When determining whether it is appropriate to rely on another 
entity's experience, an agency must demonstrate that the benchmarked 
actions are comparable to the actions in a proposed categorical 
exclusion. The agency can demonstrate this based on: (1) 
Characteristics of the actions; (2) methods of implementing the 
actions; (3) frequency of the actions; (4) applicable standard 
operating procedures or implementing guidance (including extraordinary 
circumstances); and (5) timing and context, including the environmental 
settings in which the actions take place.

B. Evaluating the Information Supporting Categorical Exclusions

    After gathering substantiating information and determining that the 
category of actions in the proposed categorical exclusion does not 
normally result in individually or cumulatively significant 
environmental effects, a Federal agency should develop findings that 
demonstrate how it made its determination. These findings should 
account for similarities and differences between the proposed 
categorical exclusion and the substantiating information. The findings 
should describe the method and criteria the agency used to assess the 
environmental effects of the proposed categorical exclusion. These 
findings, and the relevant substantiating information, should be 
maintained in an administrative record that will support: Benchmarking 
by other agencies (as discussed in Section III.A.4, above); applying 
the categorical exclusions (as discussed in Section V.A, below); and 
periodically reviewing the continued viability of the categorical 
exclusion (as discussed in Section VI, below). These findings should 
also be made available to the public, at least in preliminary form, as 
part of the process of seeking public input on the establishment of new 
or revised categorical exclusions, though the final findings may be 
revised based on new information received from the public and other 
sources.

IV. Procedures for Establishing a New or Revised Categorical Exclusion

    Pursuant to section 1507.3(a) of the CEQ Regulations, Federal 
agencies are required to consult with the public and with CEQ whenever 
they amend their NEPA procedures, including when they establish new or 
revised categorical exclusions. An agency can only adopt new or revised 
NEPA implementing procedures after the public has had notice and an 
opportunity to comment, and after CEQ has issued a determination that 
the procedures are in conformity with NEPA and the CEQ regulations. 
Accordingly, an agency's process for establishing a new or revised 
categorical exclusion should include the following steps:
     Draft the proposed categorical exclusion based on the 
agency's experience and substantiating information;
     Consult with CEQ on the proposed categorical exclusion;
     Consult with other Federal agencies that conduct similar 
activities to coordinate with their current procedures, especially for 
programs

[[Page 75635]]

requesting similar information from members of the public (e.g., 
applicants);
     Publish a notice of the proposed categorical exclusion in 
the Federal Register for public review and comment;
     Consider public comments;
     Consult with CEQ on the public comments received and the 
proposed final categorical exclusion to obtain CEQ's written 
determination of conformity with NEPA and the CEQ Regulations;
     Publish the final categorical exclusion in the Federal 
Register;
     File the categorical exclusion with CEQ; and
     Make the categorical exclusion readily available to the 
public through the agency's Web site and/or other means.

A. Consultation With CEQ

    The CEQ Regulations require agencies to consult with CEQ prior to 
publishing their proposed NEPA procedures in the Federal Register for 
public comment. Agencies are encouraged to involve CEQ as early as 
possible in the process and to enlist CEQ's expertise and assistance 
with interagency coordination to make the process as efficient as 
possible.\26\
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    \26\ 40 CFR 1507.3(a) (requiring agencies with similar programs 
to consult with one another and with CEQ to coordinate their 
procedures).
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    Following the public comment period, the Federal agency must 
consider the comments received and consult again with CEQ to discuss 
substantive comments and how they will be addressed. CEQ shall complete 
its review within thirty (30) days of receiving the final text of the 
agency's proposed categorical exclusion. For consultation to 
successfully conclude, CEQ must provide the agency with a written 
statement that the categorical exclusion was developed in conformity 
with NEPA and the CEQ Regulations. Finally, when the Federal agency 
publishes the final version of the categorical exclusion in the Federal 
Register and on its established agency Web site, the agency should 
notify CEQ of such publication so as to satisfy the requirements to 
file the final categorical exclusion with CEQ and to make the final 
categorical exclusion readily available to the public.\27\
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    \27\ Id.
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B. Seeking Public Involvement When Establishing or Revising a 
Categorical Exclusion

    Engaging the public in the environmental aspects of Federal 
decisionmaking is a key aspect of NEPA and the CEQ Regulations.\28\ At 
a minimum, the CEQ Regulations require Federal agencies to make any 
proposed amendments to their categorical exclusions available for 
public review and comment in the Federal Register,\29\ regardless of 
whether the categorical exclusions are promulgated as regulations 
through rulemaking, or issued as departmental directives or orders.\30\ 
To maximize the value of comments from interested parties, the agency's 
Federal Register notice should:
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    \28\ National Environmental Policy Act of 1969, Sec.  2 et seq., 
42 U.S.C. 4321 et seq.; see, e.g., 40 CFR 1506.6(a) (requiring 
agencies to make diligent efforts to involve the public in preparing 
and implementing their NEPA procedures); 40 CFR 1507.3(a) (requiring 
each agency to consult with CEQ while developing its procedures and 
before publishing them in the Federal Register for comment; 
providing that an agency's NEPA procedures shall be adopted only 
after an opportunity for public review; and providing that, once in 
effect, the procedures must be made readily available to the 
public).
    \29\ See 40 CFR 1507.3 (outlining procedural requirements for 
agencies to establish and revise their NEPA implementing 
regulations), 1506.6(a) (requiring agencies to involve the public in 
rulemaking, including public notice and an opportunity to comment).
    \30\ NEPA and the CEQ Regulations do not require agency NEPA 
implementing procedures, of which categorical exclusions are a key 
component, to be promulgated as regulations through rulemaking. 
Agencies should ensure they comply with all appropriate agency 
requirements for issuing and revising their NEPA implementing 
procedures.
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     Describe the proposed activities covered by the 
categorical exclusion and provide the proposed text of the categorical 
exclusion;
     Summarize the information in the agency's administrative 
record that was used to substantiate the categorical exclusion, 
including an evaluation of the information and related findings; \31\
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    \31\ This step is particularly beneficial when the agency 
determines that the public will view a potential impact as 
significant, as it provides the agency the opportunity to explain 
why it believes that impact to be presumptively insignificant. 
Whenever practicable, the agency should include a link to a Web site 
containing all the supporting information, evaluations, and 
findings. Ready access to all supporting information will likely 
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. Agencies should consider using their regulatory 
development tools to assist in maintaining access to supporting 
information, such as establishing an online docket using http://www.regulations.gov.
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     Define all applicable terms;
     Describe the extraordinary circumstances that may limit 
the use of the categorical exclusion; and
     Describe the available means for submitting questions and 
comments about the proposed categorical exclusion (for example, e-mail 
addresses, mailing addresses, Web site addresses, and names and phone 
numbers of agency points of contact).
    When establishing or revising a categorical exclusion, agencies 
should also pursue additional opportunities for public involvement 
beyond publication in the Federal Register in cases where there is 
likely to be significant public interest and additional outreach would 
facilitate public input. The extent of public involvement can be 
tailored to the nature of the proposed categorical exclusion and the 
degree of expected public interest.
    CEQ encourages Federal agencies to engage interested parties such 
as public interest groups, Federal NEPA contacts at other agencies, 
Tribal governments and agencies, and State and local governments and 
agencies. The purpose of this engagement is to share relevant data, 
information, and concerns. Agencies can involve the public by using the 
methods noted in section 1506.6 of the CEQ Regulations, as well as 
other public involvement techniques such as focus groups, e-mail 
exchanges, conference calls, and Web-based forums.
    CEQ also strongly encourages Federal agencies to post updates on 
their official Web sites whenever they issue Federal Register notices 
for new or revised categorical exclusions. An agency Web site may serve 
as the primary location where the public learns about agency NEPA 
implementing procedures and their use, and obtains efficient access to 
updates and supporting information. Therefore, agencies should ensure 
that their NEPA implementing procedures and any final revisions or 
amendments are easily accessed through the agency's official Web site 
including when an agency is adding, deleting, or revising the 
categorical exclusions and/or the extraordinary circumstances in its 
NEPA implementing procedures.

V. Applying an Established Categorical Exclusion

    When applying a categorical exclusion to a proposed action, Federal 
agencies face two key decisions: (1) Whether to prepare documentation 
supporting their determination to use a categorical exclusion for a 
propose