Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act, 14473-14480 [2012-5812]
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Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(34)(g), of the Instruction. This rule
involves establishing a temporary safety
zone that will be enforced for only two
hours. An environmental analysis
checklist and a categorical exclusion
determination are available in the
docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
Dated: February 21, 2012.
S.L. Dickinson,
Captain, U.S. Coast Guard, Captain of the
Port.
[FR Doc. 2012–5858 Filed 3–9–12; 8:45 am]
BILLING CODE 9110–04–P
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1.
2. Add a temporary § 165.T07–0110 to
read as follows:
■
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§ 165.T07–0110 Safety Zone; Festival of
States 2012 Night Parade Fireworks
Display, Tampa Bay, St. Petersburg, FL.
(a) Regulated Area. The following
regulated area is a safety zone: All
waters of Tampa Bay within a 375 yard
radius of position 27°46′31″ N,
82°37′38″ W. All coordinates are North
American Datum 1983.
(b) Definition. The term ‘‘designated
representative’’ means Coast Guard
Patrol Commanders, including Coast
Guard coxswains, petty officers, and
other officers operating Coast Guard
vessels, and Federal, state, and local
officers designated by or assisting the
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Captain of the Port St. Petersburg in the
enforcement of the regulated area.
(c) Regulations. (1) All persons and
vessels are prohibited from entering,
transiting through, anchoring in, or
remaining within the regulated area
unless authorized by the Captain of the
Port St. Petersburg or a designated
representative.
(2) Persons and vessels desiring to
enter, transit through, anchor in, or
remain within the regulated area may
contact the Captain of the Port St.
Petersburg by telephone at (727) 824–
7524, or a designated representative via
VHF radio on channel 16, to request
authorization. If authorization to enter,
transit through, anchor in, or remain
within the regulated area is granted by
the Captain of the Port St. Petersburg or
a designated representative, all persons
and vessels receiving such authorization
must comply with the instructions of
the Captain of the Port St. Petersburg or
a designated representative.
(3) The Coast Guard will provide
notice of the regulated area by Local
Notice to Mariners, Broadcast Notice to
Mariners, and on-scene designated
representatives.
(d) Effective Date. This rule is
effective from 8 p.m. until 10 p.m. on
March 22, 2012.
COUNCIL ON ENVIRONMENTAL
QUALITY
40 CFR Parts 1500, 1501, 1502, 1503,
1505, 1506, 1507, and 1508
Final Guidance on Improving the
Process for Preparing Efficient and
Timely Environmental Reviews Under
the National Environmental Policy Act
Council on Environmental
Quality.
ACTION: Notice of availability, final
guidance.
AGENCY:
The Council on
Environmental Quality (CEQ) is issuing
its final guidance on Improving the
Process for Preparing Efficient and
Timely Environmental Reviews under
the National Environmental Policy Act.
The National Environmental Policy Act
(NEPA) and CEQ Regulations
implementing NEPA provide numerous
techniques for preparing efficient and
timely environmental reviews. CEQ is
issuing this guidance for Federal
SUMMARY:
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14473
departments and agencies to emphasize
and clarify that these techniques are
available for all NEPA Environmental
Assessments and Environmental Impact
Statements. These techniques are
consistent with a thorough and
meaningful environmental review and
agencies using these techniques should
keep in mind the following basic
principles: NEPA encourages
straightforward and concise reviews and
documentation that are proportionate to
potential impacts and effectively convey
the relevant considerations in a timely
manner to the public and decision
makers, while rigorously addressing the
issues presented; NEPA shall be
integrated into project planning to
ensure planning and decisions reflect
environmental considerations, avoid
delays later in the process, and
anticipate and attempt to resolve issues,
rather than be an after-the-fact process
that justifies decisions already made;
NEPA reviews should coordinate and
take appropriate advantage of existing
documents and studies, including
through adoption and incorporation by
reference; early and well-defined
scoping can assist in focusing
environmental reviews on appropriate
issues that would be meaningful to a
decision on the proposed action;
agencies are encouraged to develop
meaningful, predictable, and
expeditious timelines for environmental
reviews; and agencies should respond to
comments in proportion to the scope
and scale of the environmental issues
raised. This guidance applies equally to
the preparation of an Environmental
Assessment or an Environmental Impact
Statement consistent with legal
precedent and agency NEPA experience
and practice. This guidance does not
change or substitute for any law,
regulations, or any other legally binding
requirement. It does provide CEQ’s
interpretation of existing regulations
promulgated under NEPA.
DATES: The guidance is effective March
12, 2012.
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: Enacted in
1970, the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321–
4346b, 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
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affect the environment and mandates
that Federal agencies consider the
environmental impacts of their
proposed actions before deciding to
adopt proposals or take action.1 Our
ongoing review of the CEQ Regulations
implementing NEPA at 40 Code of
Federal Regulations Parts 1500–1508
confirms the benefits of integrating
planning and environmental reviews,
coordinating multi-agency or multigovernmental reviews and approvals,
and setting clear schedules for preparing
EAs and EISs. This guidance promotes
a sufficient and effective process that is
tailored to avoid excessive burden. This
guidance also reflects CEQ’s continuing
commitment to implement its Plan for
Retrospective Review of Existing
Regulations (Plan) in accordance with
Executive Order 13563.2
The guidance addresses numerous
individual issues associated with the
NEPA review process in a manner that
meets the CEQ goals of promoting
techniques that will modernize the use
of NEPA, enabling agencies to more
effectively and efficiently make use of
the NEPA. The individual issues
addressed include the use of concise
NEPA documents focused on particular
environmental issues, the integration of
NEPA into preliminary parts of the
planning process, and a more prevalent
role of scoping in the development of
NEPA reviews. The guidance also
advises agencies to collaborate with
other Federal, State, local, or Tribal
agencies and representatives as well as
to coordinate reviews and documents
with other laws to allow for greater
efficiency. It further explains the
procedures to adopt other Federal
agency reviews and to incorporate by
reference information and analyses
contained in other documents, and
emphasizes the need for reasonable and
proportionate responses to comments
within the NEPA process. Finally, the
guidance recommends agencies use
appropriate time limits to promote
efficiency. Thus, this guidance offers
concrete tools for NEPA reviews to
facilitate a more targeted, efficient, and
informative analysis of environmental
issues and impacts.
This guidance provides CEQ’s
interpretation of existing regulations
promulgated under NEPA, and does not
change agencies’ obligations with regard
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 ‘‘Improving Regulation and Regulatory Review,’’
E.O. 13,563, 76 FR 3821 (January 21, 2011),
available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/
pdf/2011-1385.pdf.
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to NEPA and the CEQ Regulations
implementing NEPA.
The Federal Register notice
announcing the draft Guidance on
Improving the Process for Preparing
Efficient and Timely Environmental
Reviews under the National
Environmental Policy Act was
published on December 13, 2011.3 CEQ
appreciates the thoughtful responses to
its request for comments on the draft
guidance. Commenters included private
citizens, corporations, environmental
organizations, trade associations,
Federal agencies, and state agencies.
CEQ received 61 comments, which are
available online at
www.whitehouse.gov/administration/
eop/ceq/initiatives/nepa/comments. 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.
What’s New in This Guidance
Many commenters felt that the draft
guidance was merely a rehash of
previous guidance issued by the CEQ,
with no new insights or procedures for
making the NEPA process more
efficient. This guidance highlights and
focuses on the existing provisions under
the CEQ Regulations implementing
NEPA and clarifies that they are
available for the preparation of
Environmental Assessments, as well as
Environmental Impact Statements, so
that Federal agencies can focus on
specific techniques that provide the best
use of agency resources in ensuring a
timely, effective, and efficient NEPA
review. This guidance applies equally to
the preparation of Environmental
Assessments and Environmental Impact
Statements consistent with legal
precedent and agencies’ NEPA
experience and practice. It does not
create or endorse any new requirements
or obligations that would lengthen the
process.
Strength of Guidance
Comments on the strength of the draft
guidance varied widely, with some
commenters finding that the guidance
did not do enough to force agencies to
expedite review and other commenters
feared the guidance weakened the
importance of NEPA for agency decision
making. The guidance reinforces and
3 National Enviromental Policy Act (NEPA) Draft
Guidance, Improving the Process for Preparing
Efficient and Timely Environmental Reviews under
the National Environmental Policy Act, 76 FR
77,492, Dec. 11, 2011.
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clarifies what Federal agencies should
do, and are already allowed to do, under
NEPA and the CEQ’s NEPA
implementing regulations. For example,
the second principle on integrating
NEPA with planning now states that
agencies ‘‘shall’’ integrate NEPA into
project planning which reflects the
direction provided in current
regulations. When Congress enacted
NEPA, it charged CEQ with interpreting
the statute. Pursuant to its authority,
over the years CEQ has issued guidance
on a variety of topics. Today’s guidance
provides CEQ’s interpretation of its
already established regulations
promulgated for NEPA implementation
and does not change agencies’
obligations with regard to those
regulations.
Public Participation
Some comments desired further
emphasis on the public participation
component of NEPA as a part of this
guidance, or felt that the lack of public
participation guidance in this document
suggested that public participation is
not viewed by the CEQ to be an integral
part of the NEPA process. The CEQ
believes that public participation is a
crucial and integral part of NEPA, and
the portions of this guidance which
address public participation do nothing
to change or deemphasize this fact. The
focus of much of this guidance is on the
review and implementation procedures
of agencies, especially the physical
writing of NEPA documents and
internal agency review procedures
which do not have a direct interaction
with the public. Earlier CEQ guidance
has emphasized the importance of
public participation; see, for example
the guidance for developing and using
categorical exclusions available at
https://ceq.hss.doe.gov/ceq_regulations/
NEPA_CE_Guidance_Nov232010.pdf.
The Final Guidance
For reasons stated in the preamble,
above, CEQ issues the following
guidance on Improving the Process for
Preparing Efficient and Timely
Environmental Reviews under the
National Environmental Policy Act. The
final guidance is provided here and is
available on the National Environmental
Policy Act Web site (https://
www.nepa.gov) at https://
ceq.hss.doe.gov/ceq_regulations/
guidance.html and on the CEQ Web site
at https://www.whitehouse.gov/
administration/eop/ceq/initiatives/
nepa.
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Memorandum for Heads of Federal
Departments and Agencies
FROM: NANCY H. SUTLEY, Chair,
Council on Environmental Quality
SUBJECT: Improving the Process for
Preparing Efficient and Timely
Environmental Reviews Under the
National Environmental Policy Act
A wide array of tools is available to
meet the goal of high quality, efficient,
and timely environmental reviews
under the National Environmental
Policy Act (NEPA). The Council on
Environmental Quality (CEQ)
Regulations implementing NEPA
contain a number of opportunities for
achieving this goal. CEQ is issuing this
guidance for Federal departments and
agencies to emphasize and clarify those
opportunities, fully consistent with a
thorough and meaningful environmental
review. The guidance also makes it clear
that many of the provisions of the CEQ
Regulations which specifically refer to
an Environmental Impact Statement
(EIS) provide efficiencies that can also
be used to prepare an Environmental
Assessment (EA). This guidance applies
equally to the preparation of an EA or
an EIS consistent with legal precedent
and agency NEPA experience and
practice.
In conducting all environmental
reviews pursuant to NEPA, agencies
should use the methods set out in the
CEQ Regulations and in their own
agency NEPA implementing procedures
in a way that is mindful of the following
basic principles:
• NEPA encourages straightforward
and concise reviews and documentation
that are proportionate to potential
impacts and effectively convey the
relevant considerations to the public
and decisionmakers in a timely manner
while rigorously addressing the issues
presented;
• NEPA shall be integrated into
project planning to ensure planning and
decisions reflect environmental
considerations, avoid delays later in the
process, and anticipate and attempt to
resolve potential issues rather than be
an after-the-fact process that justifies a
decision already made;
• NEPA reviews should coordinate
and take appropriate advantage of
existing documents and studies,
including through adoption and
incorporation by reference;
• Early and well-defined scoping can
assist in focusing environmental
reviews on appropriate issues that
would be meaningful to a decision;
• Agencies are encouraged to develop
meaningful and expeditious timelines
for environmental reviews; and
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• Agencies should respond to
comments in proportion to the scope
and scale of the environmental issues
raised.
This guidance also reflects CEQ’s
continuing commitment to implement
its Plan for Retrospective Review of
Existing Regulations (‘‘Plan’’) in
accordance with Executive Order
13563.4 Our ongoing review of the CEQ
Regulations confirms the benefits of
integrating environmental reviews into
the decisionmaking process,
coordinating multi-agency or multigovernmental reviews and approvals,
and setting clear schedules for preparing
EAs and EISs. This guidance promotes
a sufficient and effective process that is
tailored to avoid excessive burden. This
guidance provides CEQ’s interpretation
of existing regulations promulgated
under NEPA, and does not change
agencies’ obligations with regard to
NEPA and the CEQ Regulations.5
Introduction and Steps to Date
CEQ was created by NEPA in 1970
and is charged with overseeing NEPA
implementation by Federal agencies. In
1978, CEQ issued the CEQ Regulations
implementing NEPA.6 From time to
time, CEQ issues guidance for the
Federal agencies, to clarify the
requirements and applicability of
various provisions of NEPA and the
CEQ Regulations, and to ensure that
those requirements can be met in a
timely and effective fashion.7 These
guidance documents represent CEQ’s
interpretation of NEPA, which the U.S.
Supreme Court has said is ‘‘entitled to
substantial deference.’’ 8
NEPA requires Federal agencies to
consider the potential environmental
consequences of their proposed action,
4 Improving Regulation and Regulatory Review,
E.O. No. 13,563, 76 Fed. Reg. 3,821 (Jan. 21, 2011),
available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/
pdf/2011-1385.pdf.
5 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, regulations, or any other
legally binding requirement and is not legally
enforceable. The use of non-mandatory terminology
such as ‘‘guidance,’’ ‘‘recommend,’’ ‘‘may,’’
‘‘should,’’ and ‘‘can,’’ is intended to describe CEQ
policies and recommendations. The use of
mandatory terminology such as ‘‘shall,’’ ‘‘must,’’
and ‘‘required’’ is intended to describe controlling
requirements under NEPA and the CEQ
Regulations, but this document does not establish
legally binding requirements in and of itself.
6 The Council on Environmental Quality (CEQ)
Regulations for Implementing the Procedural
Provisions of the National Environmental Policy
Act, 40 CFR parts 1500–1508 (2011) [hereinafter
CEQ Regulations], available on www.nepa.gov at
ceq.hss.doe.gov/ceq_regulations/regulations.html.
7 These guidance documents are available online
at ceq.hss.doe.gov/ceq_regulations/guidance.
8 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
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and any reasonable alternatives, before
deciding whether and in what form to
take an action. Environmental reviews
prepared under NEPA should provide a
decisionmaker and the public with
relevant and timely information, and the
CEQ Regulations make it clear that
‘‘NEPA’s purpose is not to generate
paperwork—even excellent
paperwork—but to foster excellent
action.’’ 9
NEPA compliance can take three
forms, a Categorical Exclusion, an EA,
or an EIS:
• Categorical Exclusion (CE): A CE
describes a category of actions that are
expected not to have individually or
cumulatively significant environmental
impacts.10 Each agency’s procedures for
implementing NEPA sets out that
agency’s CEs, which are established
after CEQ and public review. A
proposed action within such a category
does not require further analysis and
documentation in an EA or an EIS.11 A
CE can be used after determining that a
proposed action falls within the
categories of actions described in the CE
and that there are no extraordinary
circumstances indicating further
environmental review is warranted.
• Environmental Assessment (EA):
When a CE is not appropriate and the
agency has not determined whether the
proposed action will cause significant
environmental effects, then an EA is
prepared. If, as a result of the EA, a
Finding of No Significant Impact
(FONSI) is made, then the NEPA review
process is completed with the FONSI,
including documentation of its basis in
the EA; otherwise an EIS is prepared.12
• Environmental Impact Statement
(EIS): The most intensive level of
analysis is the EIS, which is typically
reserved for the analysis of proposed
actions that are expected to result in
significant environmental impacts.
When an EIS is prepared, the NEPA
review process is concluded when a
record of decision (ROD) is issued.13
CEQ has been working with agencies
to modernize and reinvigorate NEPA
implementation in several ways. CEQ
issued guidance on the development
and use of Categorical Exclusions in
November 2010.14 Properly developed
and applied, CEs provide an efficient
9 40
CFR 1500.1(c).
exclusions can also be created
through legislation.
11 40 CFR 1508.4, 1500.5(k).
12 40 CFR 1508.9.
13 40 CFR 1505.2.
14 CEQ, ‘‘Establishing, Applying, and Revising
Categorical Exclusions under the National
Environmental Policy Act’’ (Nov. 23, 2010),
available at ceq.hss.doe.gov/ceq_regulations/NEPA_
CE_Guidance_Nov232010.pdf.
10 Categorical
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tool to complete the NEPA
environmental review process for
proposals that normally do not require
more resource-intensive EAs or EISs.
The use of CEs can reduce paperwork
and delay for proposed actions that do
not raise the potential for significant
environmental effects.15 In January
2011, CEQ provided guidance that
specifically addressed the appropriate
use of a FONSI or mitigated FONSI to
conclude a NEPA review process relying
on an EA. A mitigated FONSI is
appropriate when mitigation is used to
avoid or lessen potentially significant
environmental effects of proposed
actions that would otherwise need to be
analyzed in an EIS.16 In addition, in
May 2010, CEQ issued guidance on
ensuring efficient and expeditious
compliance with NEPA when agencies
must take exigent action to protect
human health or safety and valued
resources in a timeframe that does not
allow sufficient time for the normal
NEPA process.17
In August 2011 the President called
for further steps to enhance the efficient
and effective permitting and
environmental review of infrastructure
development ‘‘through such strategies as
integrating planning and environmental
reviews; coordinating multi-agency or
multi-governmental reviews and
approvals to run concurrently; setting
clear schedules for completing steps in
the environmental review and
permitting process; and utilizing
information technologies to inform the
public about the progress of
environmental reviews as well as the
progress of Federal permitting and
review processes.’’ 18 This guidance sets
forth straightforward means by which
the CEQ Regulations support these
strategies.
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1. Concise NEPA Documents
Agencies are encouraged to
concentrate on relevant environmental
15 See 40 CFR 1500.4(p) (recommending
categorical exclusions as a tool to reduce
paperwork) and 1500.5(k) (recommending
categorical exclusions as a tool to reduce delay).
16 CEQ, ‘‘Appropriate Use of Mitigation and
Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact’’ (Jan.
14, 2011), available at ceq.hss.doe.gov/current_
developments/docs/Mitigation_and_Monitoring_
Guidance_14Jan2011.pdf.
17 CEQ, ‘‘Emergencies and the National
Environmental Policy Act,’’ (May 12, 2010),
available at ceq.hss.doe.gov/ceq_regulations/
Emergencies_and_NEPA_Memorandum_
12May2010.pdf.
18 Presidential Memorandum, ‘‘Speeding
Infrastructure Development Through More Efficient
and Effective Permitting and Environmental
Review’’ (Aug. 31, 2011), available at
www.whitehouse.gov/the-press-office/2011/08/31/
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analysis in their EAs and EISs, not to
produce an encyclopedia of all
applicable information.19
Environmental analysis should focus on
significant issues, discussing
insignificant issues only briefly.20
Impacts should be discussed in
proportion to their significance, and if
the impacts are not deemed significant
there should be only enough discussion
to show why more study is not
warranted.21 Scoping,22 incorporation
by reference,23 and integration of other
environmental analyses 24 are additional
methods that may be used to avoid
redundant or repetitive discussion of
issues.25
All NEPA environmental documents,
not just EISs, shall be written in plain
language,26 follow a clear format, and
emphasize important impact analyses
and information necessary for those
analyses rather than providing extensive
background material. Clarity and
consistency ensure that the substance of
the agency’s analysis is understood,
avoiding unnecessary confusion or risk
of litigation that could result from an
ambiguous or opaque analysis. The CEQ
Regulations indicate that the text of a
final EIS that addresses the purpose and
need, alternatives, affected
environment, and environmental
consequences should normally be less
than 150 pages and a final EIS for
proposals of unusual scope or
complexity should normally be less
than 300 pages.27
In light of the growth of
environmental requirements since the
publication of the CEQ Regulations, and
the desire to use the EIS to address, via
integration, those requirements, it is
recognized that there will be a range of
appropriate lengths of EISs.
Nevertheless, agencies should keep EISs
as concise as possible (continuing to
relegate to appendices the relevant
studies and technical analyses used to
support the determinations and
conclusions reached in the EIS) and no
longer than necessary to comply with
NEPA and the other legal and regulatory
requirements being addressed in the
EIS, and to provide decision makers and
the public with the information they
19 40
CFR 1500.4(b), 1502.2(b).
CFR 1502.2(c); see also 40 CFR 1502.2(a)
(‘‘Environmental impact statements shall be
analytic rather than encyclopedic.’’).
21 40 CFR 1502.2(b).
22 40 CFR 1500.4(g).
23 40 CFR 1500.4(j).
24 40 CFR 1500.4(k).
25 See generally 40 CFR 1502.1 (EISs should be
written in clear language so that decisionmakers
and the public can understand them).
26 40 CFR 1502.8; see also www.plainlanguage.
gov.
27 40 CFR 1502.7.
20 40
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need to assess the significant
environmental effects of the action
under review. Length should vary with
the number, complexity and
significance of potential environmental
problems.28
Similarly, the CEQ guidance issued in
1981 indicated that 10–15 pages is
generally appropriate for EAs.29 This
guidance must be balanced with the
requirement to take a hard look at the
impacts of the proposed action. As with
EISs, an EA’s length should vary with
the scope and scale of potential
environmental problems as well as the
extent to which the determination of no
significant impact relies on mitigation,
rather than just with the scope and scale
of the proposed action.30 The EA should
be no more detailed than necessary to
fulfill the functions and goals set out in
the CEQ Regulations: (1) Briefly provide
sufficient evidence and analysis for
determining whether to prepare an EIS;
(2) aid an agency’s compliance with
NEPA when no EIS is necessary, i.e., the
EA helps to identify and analyze better
alternatives and mitigation measures;
and (3) facilitate preparation of an EIS
when one is necessary.31
2. Early NEPA Integration in Planning
An agency should first consider
integrating the NEPA process into
planning when it structures its internal
process for developing a proposed
policy, program, management plan, or
project. Agencies must integrate the
NEPA process into their planning at the
earliest possible time to ensure that
planning and decisions reflect
environmental values, avoid delays later
in the process, and anticipate and
28 40 CFR 1502.2(c) (EISs ‘‘shall be kept concise
and * * * [l]ength should vary first with potential
environmental problems and then with project
size’’).
29 See CEQ, ‘‘Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy
Act Regulations’’ (Mar. 16, 1981), available at ceq.
hss.doe.gov/nepa/regs/40/30-40.HTM#36 (Question
36a and Answer). Note that at the time of FortyQuestions memorandum CEQ was of the opinion
that mitigated Findings of No Significant Impact
were only appropriate if the mitigation measures
were imposed by statute or regulation, or submitted
by an applicant or agency as part of the original
proposal. See Id. (Question 40 and Answer). CEQ
has since published guidance accepting mitigated
FONSIs as another means of efficiently concluding
the NEPA process without producing an EIS. CEQ,
‘‘Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated
Findings of No Significant Impact’’ (Jan. 14, 2011),
available at ceq.hss.doe.gov/current_developments/
docs/Mitigation_and_Monitoring_Guidance_
14Jan2011.pdf.
30 See 40 CFR 1508.9 (stating the EA is ‘‘a concise
public document’’) and 40 CFR 1502.2(c)
(interpreting the conciseness requirement for an EIS
to mean that ‘‘[l]ength should vary first with
potential environmental problems and then with
project size’’).
31 40 CFR 1508.9(a).
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attempt to resolve potential issues.32
NEPA should not become an after-thefact process that justifies decisions that
have already been made.33
The CEQ Regulations emphasize early
NEPA planning in the context of an EIS.
The scoping process can be used before
an agency issues a notice of intent to
seek useful information on a proposal
from agencies and the public.34 For
example, agencies can commence the
process to prepare an EIS during the
early stages of development of a
proposal, to ensure that the
environmental analysis can be
completed in time for the agency to
consider the final EIS before making a
decision on the proposal.35 Further, an
agency shall prepare an EIS so that it
can inform the decisionmaking process
in a timely manner ‘‘and will not be
used to rationalize or justify decisions
already made.’’ 36
To prepare efficient EAs, agencies
should adhere to these same principles
and ensure that the EA is prepared in
conjunction with the development of
the proposed action in time to inform
the public and the decisionmaker.
Agencies should review their NEPA
implementing procedures as well as
their NEPA practices to ensure that
NEPA is integrated into overall project
planning and management to the fullest
extent possible.
The CEQ Regulations call upon
agencies to provide for situations where
the initial planning process is in the
hands of an applicant or other nonFederal entity.37 The Regulations
require Federal agencies to address
these situations in their NEPA
implementing procedures.38
32 40
CFR 1501.2.
CFR 1502.2(g).
34 See CEQ Memorandum to Agencies, ‘‘Forty
Most Asked Questions Concerning CEQ’s National
Environmental Policy Act Regulations’’ (Mar. 16,
1981), available at ceq.hss.doe.gov/nepa/regs/40/
11-19.HTM#13 (Question 13 and Answer).
35 See 40 CFR 1508.23 (explaining that a proposal
exists as soon as an agency ‘‘has a goal and is
actively preparing to make a decision on one or
more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated’’).
36 40 CFR 1502.5. For guidelines specific to
different agency activities, see 40 CFR 1502.5(a)–
(d). Misuse of the NEPA process to justify decisions
already made is counterproductive and can result
in litigation that could delay and ultimately prevent
a proposed action from proceeding.
37 See 40 CFR 1501.2(d) (non-Federal entities
plan activities prior to Federal involvement that
trigger NEPA requirements).
38 40 CFR 1507.3(b)(1). All agencies are required
to adopt procedures that supplement the CEQ
Regulations and provide NEPA implementing
guidance that both provides agency personnel with
additional, more specific direction for
implementing the procedural provisions of NEPA
and informs the public and State and local officials
of how the CEQ Regulations will be implemented
in agency decisionmaking. Agency procedures
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Consequently, agencies that have a
reasonably foreseeable role in actions
that are initially developed by private
applicants or other non-Federal entities
must plan for those situations. The
NEPA implementing procedures for
such agencies must provide access to
designated staff or the policies that can
inform applicants and other non-Federal
entities of studies or other information
foreseeably required for later Federal
action.39
Advanced planning prior to Federal
involvement in an action must also
ensure that the Federal agency is able to
initiate early consultation with
appropriate Tribes, States, local
agencies, and interested private persons
and organizations when Federal
involvement is reasonably foreseeable.40
For actions initiated at the request of a
non-Federal entity, Federal agencies
should begin the NEPA process for
preparing their EA or EIS as early as
possible but no later than upon receipt
of a complete application.41 Federal
agencies should, whenever possible,
guide applicants to gather and develop
the appropriate level of information and
analyses in advance of submitting an
application or other request for Federal
agency action. For example, several
agencies require an applicant to prepare
and submit an environmental report to
help prepare the NEPA analyses and
documentation and facilitate the lead
agency’s independent environmental
review of the proposal.
3. Scoping
To effectuate integrated decision
making, avoid duplication, and focus
the NEPA review, the CEQ Regulations
should therefore provide Federal personnel with
the direction they need to implement NEPA on a
day-to-day basis. The procedures must also provide
a clear and uncomplicated picture of what those
outside the Federal government may do to become
involved in the environmental review process
under NEPA. See CEQ, ‘‘Agency Implementing
Procedures Under CEQ’s NEPA Regulations’’ (Jan.
19, 1979), available at ceq.hss.doe.gov/nepa/regs/
exec11979.html. Some examples of agency NEPA
implementing procedures are the Department of the
Interior, ‘‘Department Manual: Managing the NEPA
Process—National Park Service’’ (May 27, 2004),
available at https://206.131.241.18/app_dm/act_
getfiles.cfm?relnum=3622 and the Department of
the Interior, ‘‘Departmental Manual: Managing the
NEPA Process—Bureau of Land Management’’ (May
8, 2008), available at https://elips.doi.gov/app_dm/
act_getfiles.cfm?relnum=3799.
39 40 CFR 1501.2(d)(1).
40 40 CFR 1501.2(d)(2). Agencies should be
cognizant of their obligations under current
Executive Orders 13175 (Consultation and
Coordination with Indian Tribal Governments, Nov.
6, 2000) and 112898 (Federal Actions to Address
Environmental Justice in Minority Populations and
Low-Income Populations, Feb 11, 1994), available
at ceq.hss.doe.gov/laws_and_executive_orders/
executive_orders.html.
41 40 CFR 1501.2(d)(3).
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provide for ‘‘scoping.’’ 42 In scoping, the
lead agency determines the issues that
the EA or EIS will address and identifies
the significant impacts related to the
proposed action that will be considered
in the analysis.43 To increase efficiency,
the lead agency can solicit cooperation
at the earliest possible time from other
agencies that have jurisdiction by law or
special expertise on any environmental
issue that should be considered.
Cooperating agencies with jurisdiction
by law or special expertise can work
with the lead agency to ensure that,
whenever possible, one NEPA review
process informs all the decisions needed
to determine whether and, if so, how a
proposed action will proceed.44
The CEQ Regulations explicitly
address the role of scoping in
preparation of an EIS. Agencies can also
choose to take advantage of scoping
whenever preparing an EA. Scoping can
be particularly useful when an EA deals
with uncertainty or controversy
regarding potential conflicts over the
use of resources or the environmental
effects of the proposed action, or where
mitigation measures are likely to play a
large role in determining whether the
impacts will be reduced to a level where
a Finding of No Significant Impact can
be made. A lead agency preparing an EA
may use scoping to identify and
eliminate from detailed study the issues
that are not significant or that have been
covered by prior environmental
review.45 The scoping process provides
a transparent way to identify significant
environmental issues and to
deemphasize insignificant issues,46
thereby focusing the analysis on the
most pertinent issues and impacts.47 We
recommend that agencies review their
NEPA implementing procedures, as well
42 See 40 CFR 1501.7 (‘‘There shall be an early
and open process for determining the scope of
issues to be addressed and for identifying the
significant issues related to a proposed action. This
process shall be termed scoping.’’).
43 40 CFR 1500.4(b), (g) and 1501.7.
44 See 40 CFR 1501.6, 1508.5 (responsibilities of
the lead agency include the requirement to request
the participation of any other Federal agency which
has jurisdiction by law). CEQ has released previous
guidance on engaging other agencies with
jurisdiction over permits and other approvals
required for a proposal to proceed. CEQ,
‘‘Cooperating Agencies in Implementing the
Procedural Requirements of the National
Environmental Policy Act’’ (Jan. 30, 2002), available
at ceq.hss.doe.gov/nepa/regs/cooperating/
cooperatingagenciesmemorandum.html; CEQ,
‘‘Forty Most Asked Questions Concerning CEQ’s
National Environmental Policy Act Regulations’’
(Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/
regs/40/11-19.HTM#14 (Question and Answer 14).
45 40 CFR 1501.7(a)(3).
46 40 CFR 1500.4(g).
47 See generally 40 CFR 1501.4(b) (agencies are to
involve the public in the preparation of EAs; the
manner in which they do so is left to the agency).
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as their NEPA practices, to ensure they
have the option of scoping for EAs.
The scoping process can be
particularly helpful in identifying
opportunities to coordinate reviews and
related surveys and studies required by
other laws or by executive orders.
Scoping can also be used to begin interand intra-governmental coordination if
it is not already ongoing. To accomplish
these goals, the lead agency preparing
an EA or an EIS can choose to invite the
participation of affected Federal, State,
and local agencies, any affected Indian
tribe, the proponent of the action, and
‘‘other interested persons (including
those who might not be in accord with
the action on environmental
grounds).’’ 48 In addition to facilitating
coordination and the development of
required environmental reviews,
scoping will help to identify the
universe of matters that need to be
addressed with particular care and flag
issues for thorough consideration,
thereby defusing potential conflict that,
absent early attention, could arise later
and potentially delay the timely
completion of the relevant NEPA review
and agency decision.49
In sum, the scoping process provides
an early opportunity to plan
collaboration with other governments,50
assign responsibilities,51 and develop
48 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6.
Establishing cooperating agency status is discussed
in greater detail in a CEQ memorandum addressed
to the heads of Federal agencies, entitled
‘‘Cooperating Agencies in Implementing the
Procedural Requirements of the National
Environmental Policy Act.’’ CEQ, ‘‘Cooperating
Agencies in Implementing the Procedural
Requirements of the National Environmental Policy
Act’’ (Jan. 30, 2002), available at ceq.hss.doe.gov/
nepa/regs/cooperating/
cooperatingagenciesmemorandum.html.
49 In cases where a Federal agency uses scoping
for an EA and subsequently determines it is
necessary to conduct an EIS, the agency should
refer to the guidance previously published by the
CEQ. See CEQ, ‘‘Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy
Act Regulations’’ (Mar. 16, 1981), available at ceq.
hss.doe.gov/nepa/regs/40/30-40.HTM#13 (Question
13 and the following answer state that scoping done
before the assessment, and in aid of its preparation,
cannot substitute for the normal scoping process
after publication of the notice of intent, unless the
earlier public notice stated clearly that this
possibility was under consideration, and the notice
of intent expressly provides that written comments
on the scope of alternatives and impacts will still
be considered).
50 40 CFR 1501.6, 1508.5. CEQ has published
guidance encouraging lead agencies to establish a
formal cooperating agency relationship with other
Federal agencies as well as State, Tribal, and local
governmental entities. CEQ, ‘‘Cooperating Agencies
in Implementing the Procedural Requirements of
the National Environmental Policy Act’’ (Jan. 30,
2002), available at ceq.hss.doe.gov/nepa/regs/
cooperating/cooperatingagenciesmemorandum.
html.
51 See, e.g., 40 CFR 1501.7(a)(4) (a lead agency
may allocate assignments for EIS preparation and
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the planning and decisionmaking
schedule.52 It also affords lead agencies
the option of setting page limits for
environmental documents and setting
time limits for the steps in the NEPA
process.53 Agencies may choose to use
scoping whenever any of these
techniques can provide for the more
effective and efficient preparation of an
EA.
4. Inter-Governmental Coordination
(State, Local, or Tribal Environmental
Reviews)
CEQ encourages Federal agencies to
collaborate with Tribal, State, and local
governments to the fullest extent
possible to reduce duplication, unless
the agencies are specifically barred from
doing so by some other law.54 The CEQ
Regulations explicitly provide for
agencies to conduct joint planning
processes, joint environmental research
and studies, joint public hearings
(except where otherwise precluded by
statute), and joint environmental
assessments.55 Federal agencies should
explore every reasonable opportunity to
integrate the requirements of NEPA with
the external planning and
environmental reviews required on the
Federal as well as the State, Tribal, and
local levels of government so that those
reviews can run concurrently rather
than consecutively.56
Where State law or local ordinances
contain environmental impact analysis
and documentation requirements in
addition to, but not in conflict with,
those in NEPA, the CEQ Regulations
provide authority for producing joint
EISs.57 In such cases, Federal agencies
shall cooperate with the State, Tribal,
and local governments to integrate
environmental impact analysis and
documentation requirements so that one
document will suffice for complying
with as many applicable environmental
laws and requirements as practicable.
Agencies should adhere to these same
principles when preparing an EA.
Federal agencies should seek
efficiencies and avoid delay by
attempting to meet applicable nonFederal NEPA-like requirements in
analysis among cooperating agencies during
scoping).
52 40 CFR 1501.7(a)(7).
53 40 CFR 1501.7(b)(1)–(2), 1501.8.
54 40 CFR 1506.2(b) (calling for collaboration ‘‘to
the fullest extent possible’’).
55 40 CFR 1506.2(b); see also 40 CFR 1500.4(n)
(encouraging Federal agencies to eliminate
duplication with State and local procedures
through joint preparation of documents).
56 40 CFR 1500.2(c). This point is reiterated
throughout the CEQ Regulations.
57 40 CFR 1506.2(c).
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conjunction with either an EA or an EIS
wherever possible.58
The CEQ Regulations also require that
a Federal agency preparing an EIS better
integrate the EIS into non-Federal
planning processes by discussing and
explaining any inconsistency of a
proposed Federal action with any
approved State or local plans and
laws.59 When preparing an EA or EIS, if
an inconsistency with any approved
Tribal, State, or local plan or law exists,
the Federal agency should describe the
extent to which it will reconcile its
proposed action with the non-Federal
plan or law.60
5. Coordinating Reviews and Documents
Under Other Applicable Laws
Agencies must integrate, to the fullest
extent possible, their draft EIS with
environmental impact analyses and
related surveys and studies required by
other statutes or Executive Orders.61
Coordinated and concurrent
environmental reviews are appropriate
whenever other analyses, surveys, and
studies will consider the same issues
and information as a NEPA analysis.
Such coordination should be considered
when preparing an EA as well as when
preparing an EIS. Techniques available
to agencies when coordinating a
combined or a concurrent process
include combining the scoping, requests
for public comment, and preparation
and display of responses to public
comments.
The goal should be to conduct
concurrent rather than sequential
processes whenever appropriate. In
situations where one aspect of a project
is within the particular expertise or
jurisdiction of another agency an agency
should consider whether adoption or
incorporation by reference of materials
prepared by the other agency would be
more efficient.
A coordinated or concurrent process
may provide a better basis for informed
decision making, or at least achieve the
same result as separate or consecutive
processes more quickly and with less
potential for unnecessary duplication of
effort. In addition to integrating the
reviews and analyses, the CEQ
Regulations allow an environmental
document that complies with NEPA to
58 Although joint processes usually lead to greater
efficiency and better decisionmaking, a joint
process may become unwieldy and the result is
that, for some projects, combining a State and
Federal process is not practical.
59 40 CFR 1506.2(d).
60 40 CFR 1506.2(d).
61 40 CFR 1502.25(a). Examples provided in the
Regulation are: The Fish and Wildlife Coordination
Act (16 U.S.C. 661 et seq.); the National Historic
Preservation Act (16 U.S.C. 470 et seq.); and the
Endangered Species Act (16 U.S.C. 1531 et seq.).
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be combined with a subsequent agency
document to reduce duplication and
paperwork.62
6. Adoption
The adoption of one Federal agency’s
EIS, or a portion of that EIS, by another
Federal agency is an efficiency that the
CEQ Regulations provide.63 An agency
preparing an EA should similarly
consider adopting another agency’s EA
or EIS when the EA or EIS, or a portion
thereof, addresses the proposed action
and meets the standards for an adequate
analysis under NEPA, the CEQ’s
Regulations, and the adopting agency’s
NEPA implementing procedures.
The CEQ Regulations require agencies
to involve agencies, applicants, and the
public when preparing an EA; however,
they do not require agencies to do so by
preparing a draft or final EA for public
review or comment.64 If an agency’s
implementing NEPA procedures
establish requirements for public review
and comment when preparing an EA,
then the agency must provide a similar
process when it adopts another agency’s
EA, but may use the same efficiencies
that are available when adopting
another agency’s EIS.
If the actions covered by the original
EIS and the proposed action are
substantially the same, the agency
adopting the EIS is not required to
recirculate the EIS as a draft for public
review and comment. The same is true
for the adoption of another agency’s EA
when the original and proposed actions
are substantially the same. In addition,
in cases where the adopting agency is
also a cooperating agency in the
preparation of an EIS, it may adopt the
lead agency’s EIS without recirculating
the EIS as a draft or as a final EIS when,
after an independent review, it
concludes that the lead agency has
adequately addressed the adopting
agency’s comments and suggestions.65
Similarly, when the adopting agency
was a cooperating agency in the
preparation of an EA, it may adopt the
EA without recirculating the EA.
7. Incorporation by Reference 66
Incorporation by reference is another
method that provides efficiency and
timesaving when preparing either an EA
62 40
CFR 1506.4, 1500.4(k), 1500.4(n).
CFR 1506.3.
64 See generally 40 CFR 1501.4(b), 1506.6 (both
regulations direct agencies to involve the public in
the preparation of EAs; however, the manner in
which they do so is left to the agency).
65 40 CFR 1506.3(c).
66 This guidance does not address tiering. Further
guidance will be developed to address the use of
broad, programmatic, analyses to focus future
reviews and the subsequent, tiered, review of siteor project- specific proposed actions.
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or an EIS. The CEQ Regulations direct
agencies to incorporate by reference
material into an EIS to reduce the size
of the EIS and avoid duplicative effort.67
An agency must provide a citation that
clearly identifies the incorporated
material in an EIS and briefly describe
the content.68 The brief description
should identify the referenced materials
and the entity (Federal or non-Federal)
that prepared the materials, inform the
reader of the purpose and value of those
materials (e.g., explain how the
information or analyses are relevant to
the issues associated with the proposal
under review), and synopsize the basis
provided in those materials that support
any conclusions being incorporated. An
agency may not incorporate any
material by reference in an EIS unless
the material is reasonably available for
inspection by potentially interested
persons within the time allowed for
comment.69 There are many techniques
available to make the referenced
material readily available such as:
Placing the relevant materials in an
appendix; providing a hyperlink that
provides Internet access to the
materials; and placing materials in local
libraries or facilities accessible to the
public. Agencies can, consistent with
NEPA and the CEQ Regulations,
incorporate by reference analyses and
information from existing documents
into an EA provided the material has
been appropriately cited and described,
and the materials are reasonably
available for review by interested
parties.
8. Expediting Responses to Comments
Agencies should provide a reasonable
and proportionate response to
comments on a draft EIS by focusing on
the environmental issues and
information conveyed by the comments.
When preparing a final EIS, if the draft
EIS complies with NEPA, CEQ
regulations, and agency implementing
procedures, the agency may use the
draft EIS as the final EIS under certain
conditions. If changes in response to
comments are minor and are limited to
factual corrections and/or explanations
of why the comments do not warrant
further agency response, agencies may
write them on errata sheets and attach
them to the statement instead of
rewriting the draft statement.70 In such
cases, the agency must circulate and
make available for public review as the
67 40
CFR 1502.21.
CFR 1502.21.
69 40 CFR 1502.21 (material based on proprietary
data which is itself not available for review and
comment cannot be incorporated by reference).
70 40 CFR 1503.4(c), 1500.4(m).
68 40
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final EIS only the comments, the
responses and the changes.71 The
comments, responses, and changes, as
well as the draft document and a new
cover sheet need to be filed to make the
EIS final, under those circumstances.72
Similarly, if an agency issues an EA
for comment and the changes in
response to comments are minor and
limited to factual corrections and/or
explanations of why the comments do
not warrant further agency response,
then the agency may prepare a similar
cover and errata sheet and use its draft
EA as the final EA. When circulating
draft EAs or EISs for public review and
comment, we recommend agencies
facilitate public review and comment by
also publishing the EISs and EAs, and
subsequently the comments received, on
agency Web sites.
9. Clear Time Lines for NEPA Reviews
Establishing appropriate and
predictable time limits promotes the
efficiency of the NEPA process.73 The
CEQ Regulations recommend that
agencies designate a person (such as a
project manager or a person in the
agency’s office with NEPA
responsibilities) to lead and shepherd
the NEPA review to expedite the
process.74 The CEQ Regulations do not
prescribe universal time limits for the
entire NEPA process; instead they set
certain minimum time limits for the
various portions of the NEPA process.75
The CEQ Regulations do encourage
Federal agencies to set appropriate time
limits for individual actions, however,
and provide a list of factors to consider
in establishing timelines.76 Those
factors include: The potential for
environmental harm; the size of the
proposed action; other time limits
imposed on the action by other statutes,
regulations, or Executive Orders; the
degree of public need for the proposed
action and the consequences of delay;
and the need for a reasonable
opportunity for public review.
The CEQ Regulations refer to the EIS
process when describing the
‘‘constituent parts of the NEPA process’’
to which time limits may apply, require
agencies to set time limits at the request
71 40
CFR 1503.4(c).
CFR 1503.4(c).
73 40 CFR 1500.5(e).
74 40 CFR 1501.8(b)(3).
75 See 40 CFR 1506.10 (setting 90 day time period
between EPA publication of the notice of
availability of a draft EIS and the Record of
Decision, 30 day time period between EPA
publication of the notice of availability of a final
EIS and the Record of Decision, and 45 days for
comment on a draft EIS).
76 CEQ encourages Federal agencies to set time
limits consistent with the time intervals required by
§ 1506.10. 40 CFR 1501.8.
72 40
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of an applicant, and allow agencies to
set time limits at the request of other
interested parties.77 It is entirely
consistent with the purposes and goals
of NEPA and with the CEQ Regulations
for agencies to consider the same factors
and determine appropriate time limits
for the various phases of the EA process
when requested by applicants, Tribes,
States, local agencies, or members of the
public.
Conclusion
This guidance highlights for agencies
preparing either an EA or an EIS the
ability to employ all the methods
provided in the CEQ regulations to
prepare concise and timely NEPA
reviews. Using methods such as
integrating planning and environmental
reviews and permitting, coordinating
multi-agency or multi-governmental
reviews and approvals, and setting
schedules for completing the
environmental review will assist
agencies in preparing efficient and
timely EAs and EISs consistent with
legal precedent and agency NEPA
experience and practice.
Nancy H. Sutley,
Chair, Council on Environmental Quality.
[FR Doc. 2012–5812 Filed 3–9–12; 8:45 am]
BILLING CODE 3225–F2–P
12 procedures but which do not meet
the definition of commercial item.
DATES: March 12, 2012.
FOR FURTHER INFORMATION CONTACT: Mr.
Dustin Pitsch, telephone 703–602–0289.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is revising the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a
recommendation made by the Panel on
Contracting Integrity and included in its
2009 Report to Congress concerning
compliance with the DFARS
documentation requirements for
commercial item determinations. The
Panel on Contracting Integrity working
group concluded, after reviewing a
sampling of commercial contract
awards, that contracting officer
determinations are not always
sufficiently documented in accordance
with DFARS 212.102.
DoD is issuing a final rule because
this rule does not have a significant
effect beyond the internal operating
procedures of DoD and does not have a
significant cost or administrative impact
on contractors or offerors. This rule
addresses DoD’s internal approval
process for contracting officer
determinations made pursuant to
DFARS part 12 for actions in excess of
$1 million.
DEPARTMENT OF DEFENSE
II. Discussion and Analysis
Defense Acquisition Regulations
System
The DFARS changes are as follows:
• DFARS 212.102(a)(i) is revised to
add ‘‘except for acquisitions made
pursuant to Federal Acquisition
Regulation (FAR) 12.102(f)(1).’’ This
language clarifies that no additional
contracting officer determination is
required for acquisitions made pursuant
to FAR 12.102(f)(1).
• DFARS 212.102(a)(i)(A) is revised
to add ‘‘or meets the criteria at FAR
12.102(g)(1).’’ This language addresses
the inconsistency between the existing
DFARS language at 212.102(a)(i)(A) that
all FAR part 12 acquisitions exceeding
$1 million must meet the commercial
item definition, and the exception at
FAR 12.102(g)(1) that allows for the use
of part 12 procedures for services that
do not meet the definition of
commercial item in FAR 2.101, as long
as it meets specific criteria listed in FAR
12.102(g)(1). The change clarifies that
the contracting officer must determine
that an acquisition exceeding $1 million
and using part 12 procedures either
meets the commercial item definition in
part FAR 2.101 or the criteria set out at
FAR 12.102(g)(1).
• Adds DFARS 212.102(a)(i)(C) to
require approval at one level above the
48 CFR Part 212
RIN 0750–AH61
Defense Federal Acquisition
Regulation Supplement: Commercial
Determination Approval (DFARS Case
2011–D041)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement to
require higher-level approval for
commercial item determinations for
acquisitions exceeding $1 million when
the determination is based on ‘‘of a
type’’ or ‘‘offered for sale’’ language
contained in the definition of
commercial item. The rule also clarifies
approval requirements for
determinations for acquisitions of
services exceeding $1 million using part
pmangrum on DSK3VPTVN1PROD with RULES
SUMMARY:
77 40
CFR 1501.8(b), (c).
VerDate Mar<15>2010
11:45 Mar 09, 2012
Jkt 226001
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
contracting officer when the commercial
item determination relies on subsections
(1)(ii), (3), (4), or (6) of the ‘‘commercial
item’’ definition at FAR 2.101. The
higher-level approval is required for
commercial item determinations for
actions that exceed $1 million that are
based on ‘‘of a type’’ commercial
procurements or items ‘‘offered for sale’’
but not yet sold to the general public.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule because this final
rule does not constitute a significant
DFARS revision as defined within the
meaning at FAR 1.501–1, and 41 U.S.C.
1707 does not require publication for
comment.
V. Paperwork Reduction Act
The proposed rule does not contain
any information collection requirements
that require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Part 212
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 212 is
amended as follows:
■ 1. The authority citation for 48 CFR
part 212 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Revise section 212.102 to read as
follows:
■
E:\FR\FM\12MRR1.SGM
12MRR1
]]>Agencies
[Federal Register Volume 77, Number 48 (Monday, March 12, 2012)]
[Rules and Regulations]
[Pages 14473-14480]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5812]
=======================================================================
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1505, 1506, 1507, and 1508
Final Guidance on Improving the Process for Preparing Efficient
and Timely Environmental Reviews Under the National Environmental
Policy Act
AGENCY: Council on Environmental Quality.
ACTION: Notice of availability, final guidance.
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SUMMARY: The Council on Environmental Quality (CEQ) is issuing its
final guidance on Improving the Process for Preparing Efficient and
Timely Environmental Reviews under the National Environmental Policy
Act. The National Environmental Policy Act (NEPA) and CEQ Regulations
implementing NEPA provide numerous techniques for preparing efficient
and timely environmental reviews. CEQ is issuing this guidance for
Federal departments and agencies to emphasize and clarify that these
techniques are available for all NEPA Environmental Assessments and
Environmental Impact Statements. These techniques are consistent with a
thorough and meaningful environmental review and agencies using these
techniques should keep in mind the following basic principles: NEPA
encourages straightforward and concise reviews and documentation that
are proportionate to potential impacts and effectively convey the
relevant considerations in a timely manner to the public and decision
makers, while rigorously addressing the issues presented; NEPA shall be
integrated into project planning to ensure planning and decisions
reflect environmental considerations, avoid delays later in the
process, and anticipate and attempt to resolve issues, rather than be
an after-the-fact process that justifies decisions already made; NEPA
reviews should coordinate and take appropriate advantage of existing
documents and studies, including through adoption and incorporation by
reference; early and well-defined scoping can assist in focusing
environmental reviews on appropriate issues that would be meaningful to
a decision on the proposed action; agencies are encouraged to develop
meaningful, predictable, and expeditious timelines for environmental
reviews; and agencies should respond to comments in proportion to the
scope and scale of the environmental issues raised. This guidance
applies equally to the preparation of an Environmental Assessment or an
Environmental Impact Statement consistent with legal precedent and
agency NEPA experience and practice. This guidance does not change or
substitute for any law, regulations, or any other legally binding
requirement. It does provide CEQ's interpretation of existing
regulations promulgated under NEPA.
DATES: The guidance is effective March 12, 2012.
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: Enacted in 1970, the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321-4346b, 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
[[Page 14474]]
affect the environment and mandates that Federal agencies consider the
environmental impacts of their proposed actions before deciding to
adopt proposals or take action.\1\ Our ongoing review of the CEQ
Regulations implementing NEPA at 40 Code of Federal Regulations Parts
1500-1508 confirms the benefits of integrating planning and
environmental reviews, coordinating multi-agency or multi-governmental
reviews and approvals, and setting clear schedules for preparing EAs
and EISs. This guidance promotes a sufficient and effective process
that is tailored to avoid excessive burden. This guidance also reflects
CEQ's continuing commitment to implement its Plan for Retrospective
Review of Existing Regulations (Plan) in accordance with Executive
Order 13563.\2\
---------------------------------------------------------------------------
\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\ ``Improving Regulation and Regulatory Review,'' E.O. 13,563,
76 FR 3821 (January 21, 2011), available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------
The guidance addresses numerous individual issues associated with
the NEPA review process in a manner that meets the CEQ goals of
promoting techniques that will modernize the use of NEPA, enabling
agencies to more effectively and efficiently make use of the NEPA. The
individual issues addressed include the use of concise NEPA documents
focused on particular environmental issues, the integration of NEPA
into preliminary parts of the planning process, and a more prevalent
role of scoping in the development of NEPA reviews. The guidance also
advises agencies to collaborate with other Federal, State, local, or
Tribal agencies and representatives as well as to coordinate reviews
and documents with other laws to allow for greater efficiency. It
further explains the procedures to adopt other Federal agency reviews
and to incorporate by reference information and analyses contained in
other documents, and emphasizes the need for reasonable and
proportionate responses to comments within the NEPA process. Finally,
the guidance recommends agencies use appropriate time limits to promote
efficiency. Thus, this guidance offers concrete tools for NEPA reviews
to facilitate a more targeted, efficient, and informative analysis of
environmental issues and impacts.
This guidance provides CEQ's interpretation of existing regulations
promulgated under NEPA, and does not change agencies' obligations with
regard to NEPA and the CEQ Regulations implementing NEPA.
The Federal Register notice announcing the draft Guidance on
Improving the Process for Preparing Efficient and Timely Environmental
Reviews under the National Environmental Policy Act was published on
December 13, 2011.\3\ CEQ appreciates the thoughtful responses to its
request for comments on the draft guidance. Commenters included private
citizens, corporations, environmental organizations, trade
associations, Federal agencies, and state agencies. CEQ received 61
comments, which are available online at www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/comments. 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.
---------------------------------------------------------------------------
\3\ National Enviromental Policy Act (NEPA) Draft Guidance,
Improving the Process for Preparing Efficient and Timely
Environmental Reviews under the National Environmental Policy Act,
76 FR 77,492, Dec. 11, 2011.
---------------------------------------------------------------------------
What's New in This Guidance
Many commenters felt that the draft guidance was merely a rehash of
previous guidance issued by the CEQ, with no new insights or procedures
for making the NEPA process more efficient. This guidance highlights
and focuses on the existing provisions under the CEQ Regulations
implementing NEPA and clarifies that they are available for the
preparation of Environmental Assessments, as well as Environmental
Impact Statements, so that Federal agencies can focus on specific
techniques that provide the best use of agency resources in ensuring a
timely, effective, and efficient NEPA review. This guidance applies
equally to the preparation of Environmental Assessments and
Environmental Impact Statements consistent with legal precedent and
agencies' NEPA experience and practice. It does not create or endorse
any new requirements or obligations that would lengthen the process.
Strength of Guidance
Comments on the strength of the draft guidance varied widely, with
some commenters finding that the guidance did not do enough to force
agencies to expedite review and other commenters feared the guidance
weakened the importance of NEPA for agency decision making. The
guidance reinforces and clarifies what Federal agencies should do, and
are already allowed to do, under NEPA and the CEQ's NEPA implementing
regulations. For example, the second principle on integrating NEPA with
planning now states that agencies ``shall'' integrate NEPA into project
planning which reflects the direction provided in current regulations.
When Congress enacted NEPA, it charged CEQ with interpreting the
statute. Pursuant to its authority, over the years CEQ has issued
guidance on a variety of topics. Today's guidance provides CEQ's
interpretation of its already established regulations promulgated for
NEPA implementation and does not change agencies' obligations with
regard to those regulations.
Public Participation
Some comments desired further emphasis on the public participation
component of NEPA as a part of this guidance, or felt that the lack of
public participation guidance in this document suggested that public
participation is not viewed by the CEQ to be an integral part of the
NEPA process. The CEQ believes that public participation is a crucial
and integral part of NEPA, and the portions of this guidance which
address public participation do nothing to change or deemphasize this
fact. The focus of much of this guidance is on the review and
implementation procedures of agencies, especially the physical writing
of NEPA documents and internal agency review procedures which do not
have a direct interaction with the public. Earlier CEQ guidance has
emphasized the importance of public participation; see, for example the
guidance for developing and using categorical exclusions available at
https://ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
The Final Guidance
For reasons stated in the preamble, above, CEQ issues the following
guidance on Improving the Process for Preparing Efficient and Timely
Environmental Reviews under the National Environmental Policy Act. The
final guidance is provided here and is available on the National
Environmental Policy Act Web site (https://www.nepa.gov) at https://
ceq.hss.doe.gov/ceq_regulations/guidance.html and on the CEQ Web site
at https://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.
[[Page 14475]]
Memorandum for Heads of Federal Departments and Agencies
FROM: NANCY H. SUTLEY, Chair, Council on Environmental Quality
SUBJECT: Improving the Process for Preparing Efficient and Timely
Environmental Reviews Under the National Environmental Policy Act
A wide array of tools is available to meet the goal of high
quality, efficient, and timely environmental reviews under the National
Environmental Policy Act (NEPA). The Council on Environmental Quality
(CEQ) Regulations implementing NEPA contain a number of opportunities
for achieving this goal. CEQ is issuing this guidance for Federal
departments and agencies to emphasize and clarify those opportunities,
fully consistent with a thorough and meaningful environmental review.
The guidance also makes it clear that many of the provisions of the CEQ
Regulations which specifically refer to an Environmental Impact
Statement (EIS) provide efficiencies that can also be used to prepare
an Environmental Assessment (EA). This guidance applies equally to the
preparation of an EA or an EIS consistent with legal precedent and
agency NEPA experience and practice.
In conducting all environmental reviews pursuant to NEPA, agencies
should use the methods set out in the CEQ Regulations and in their own
agency NEPA implementing procedures in a way that is mindful of the
following basic principles:
NEPA encourages straightforward and concise reviews and
documentation that are proportionate to potential impacts and
effectively convey the relevant considerations to the public and
decisionmakers in a timely manner while rigorously addressing the
issues presented;
NEPA shall be integrated into project planning to ensure
planning and decisions reflect environmental considerations, avoid
delays later in the process, and anticipate and attempt to resolve
potential issues rather than be an after-the-fact process that
justifies a decision already made;
NEPA reviews should coordinate and take appropriate
advantage of existing documents and studies, including through adoption
and incorporation by reference;
Early and well-defined scoping can assist in focusing
environmental reviews on appropriate issues that would be meaningful to
a decision;
Agencies are encouraged to develop meaningful and
expeditious timelines for environmental reviews; and
Agencies should respond to comments in proportion to the
scope and scale of the environmental issues raised.
This guidance also reflects CEQ's continuing commitment to
implement its Plan for Retrospective Review of Existing Regulations
(``Plan'') in accordance with Executive Order 13563.\4\ Our ongoing
review of the CEQ Regulations confirms the benefits of integrating
environmental reviews into the decisionmaking process, coordinating
multi-agency or multi-governmental reviews and approvals, and setting
clear schedules for preparing EAs and EISs. This guidance promotes a
sufficient and effective process that is tailored to avoid excessive
burden. This guidance provides CEQ's interpretation of existing
regulations promulgated under NEPA, and does not change agencies'
obligations with regard to NEPA and the CEQ Regulations.\5\
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\4\ Improving Regulation and Regulatory Review, E.O. No. 13,563,
76 Fed. Reg. 3,821 (Jan. 21, 2011), available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
\5\ 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, regulations, or any other
legally binding requirement and is not legally enforceable. The use
of non-mandatory terminology such as ``guidance,'' ``recommend,''
``may,'' ``should,'' and ``can,'' is intended to describe CEQ
policies and recommendations. The use of mandatory terminology such
as ``shall,'' ``must,'' and ``required'' is intended to describe
controlling requirements under NEPA and the CEQ Regulations, but
this document does not establish legally binding requirements in and
of itself.
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Introduction and Steps to Date
CEQ was created by NEPA in 1970 and is charged with overseeing NEPA
implementation by Federal agencies. In 1978, CEQ issued the CEQ
Regulations implementing NEPA.\6\ From time to time, CEQ issues
guidance for the Federal agencies, to clarify the requirements and
applicability of various provisions of NEPA and the CEQ Regulations,
and to ensure that those requirements can be met in a timely and
effective fashion.\7\ These guidance documents represent CEQ's
interpretation of NEPA, which the U.S. Supreme Court has said is
``entitled to substantial deference.'' \8\
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\6\ The Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act, 40 CFR parts 1500-1508 (2011) [hereinafter CEQ
Regulations], available on www.nepa.gov at ceq.hss.doe.gov/ceq_regulations/regulations.html.
\7\ These guidance documents are available online at
ceq.hss.doe.gov/ceq_regulations/guidance.
\8\ Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
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NEPA requires Federal agencies to consider the potential
environmental consequences of their proposed action, and any reasonable
alternatives, before deciding whether and in what form to take an
action. Environmental reviews prepared under NEPA should provide a
decisionmaker and the public with relevant and timely information, and
the CEQ Regulations make it clear that ``NEPA's purpose is not to
generate paperwork--even excellent paperwork--but to foster excellent
action.'' \9\
---------------------------------------------------------------------------
\9\ 40 CFR 1500.1(c).
---------------------------------------------------------------------------
NEPA compliance can take three forms, a Categorical Exclusion, an
EA, or an EIS:
Categorical Exclusion (CE): A CE describes a category of
actions that are expected not to have individually or cumulatively
significant environmental impacts.\10\ Each agency's procedures for
implementing NEPA sets out that agency's CEs, which are established
after CEQ and public review. A proposed action within such a category
does not require further analysis and documentation in an EA or an
EIS.\11\ A CE can be used after determining that a proposed action
falls within the categories of actions described in the CE and that
there are no extraordinary circumstances indicating further
environmental review is warranted.
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\10\ Categorical exclusions can also be created through
legislation.
\11\ 40 CFR 1508.4, 1500.5(k).
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Environmental Assessment (EA): When a CE is not
appropriate and the agency has not determined whether the proposed
action will cause significant environmental effects, then an EA is
prepared. If, as a result of the EA, a Finding of No Significant Impact
(FONSI) is made, then the NEPA review process is completed with the
FONSI, including documentation of its basis in the EA; otherwise an EIS
is prepared.\12\
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\12\ 40 CFR 1508.9.
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Environmental Impact Statement (EIS): The most intensive
level of analysis is the EIS, which is typically reserved for the
analysis of proposed actions that are expected to result in significant
environmental impacts. When an EIS is prepared, the NEPA review process
is concluded when a record of decision (ROD) is issued.\13\
---------------------------------------------------------------------------
\13\ 40 CFR 1505.2.
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CEQ has been working with agencies to modernize and reinvigorate
NEPA implementation in several ways. CEQ issued guidance on the
development and use of Categorical Exclusions in November 2010.\14\
Properly developed and applied, CEs provide an efficient
[[Page 14476]]
tool to complete the NEPA environmental review process for proposals
that normally do not require more resource-intensive EAs or EISs. The
use of CEs can reduce paperwork and delay for proposed actions that do
not raise the potential for significant environmental effects.\15\ In
January 2011, CEQ provided guidance that specifically addressed the
appropriate use of a FONSI or mitigated FONSI to conclude a NEPA review
process relying on an EA. A mitigated FONSI is appropriate when
mitigation is used to avoid or lessen potentially significant
environmental effects of proposed actions that would otherwise need to
be analyzed in an EIS.\16\ In addition, in May 2010, CEQ issued
guidance on ensuring efficient and expeditious compliance with NEPA
when agencies must take exigent action to protect human health or
safety and valued resources in a timeframe that does not allow
sufficient time for the normal NEPA process.\17\
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\14\ CEQ, ``Establishing, Applying, and Revising Categorical
Exclusions under the National Environmental Policy Act'' (Nov. 23,
2010), available at ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
\15\ See 40 CFR 1500.4(p) (recommending categorical exclusions
as a tool to reduce paperwork) and 1500.5(k) (recommending
categorical exclusions as a tool to reduce delay).
\16\ CEQ, ``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact'' (Jan. 14, 2011), available at ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\17\ CEQ, ``Emergencies and the National Environmental Policy
Act,'' (May 12, 2010), available at ceq.hss.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
---------------------------------------------------------------------------
In August 2011 the President called for further steps to enhance
the efficient and effective permitting and environmental review of
infrastructure development ``through such strategies as integrating
planning and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear
schedules for completing steps in the environmental review and
permitting process; and utilizing information technologies to inform
the public about the progress of environmental reviews as well as the
progress of Federal permitting and review processes.'' \18\ This
guidance sets forth straightforward means by which the CEQ Regulations
support these strategies.
---------------------------------------------------------------------------
\18\ Presidential Memorandum, ``Speeding Infrastructure
Development Through More Efficient and Effective Permitting and
Environmental Review'' (Aug. 31, 2011), available at
www.whitehouse.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more.
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1. Concise NEPA Documents
Agencies are encouraged to concentrate on relevant environmental
analysis in their EAs and EISs, not to produce an encyclopedia of all
applicable information.\19\ Environmental analysis should focus on
significant issues, discussing insignificant issues only briefly.\20\
Impacts should be discussed in proportion to their significance, and if
the impacts are not deemed significant there should be only enough
discussion to show why more study is not warranted.\21\ Scoping,\22\
incorporation by reference,\23\ and integration of other environmental
analyses \24\ are additional methods that may be used to avoid
redundant or repetitive discussion of issues.\25\
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\19\ 40 CFR 1500.4(b), 1502.2(b).
\20\ 40 CFR 1502.2(c); see also 40 CFR 1502.2(a)
(``Environmental impact statements shall be analytic rather than
encyclopedic.'').
\21\ 40 CFR 1502.2(b).
\22\ 40 CFR 1500.4(g).
\23\ 40 CFR 1500.4(j).
\24\ 40 CFR 1500.4(k).
\25\ See generally 40 CFR 1502.1 (EISs should be written in
clear language so that decisionmakers and the public can understand
them).
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All NEPA environmental documents, not just EISs, shall be written
in plain language,\26\ follow a clear format, and emphasize important
impact analyses and information necessary for those analyses rather
than providing extensive background material. Clarity and consistency
ensure that the substance of the agency's analysis is understood,
avoiding unnecessary confusion or risk of litigation that could result
from an ambiguous or opaque analysis. The CEQ Regulations indicate that
the text of a final EIS that addresses the purpose and need,
alternatives, affected environment, and environmental consequences
should normally be less than 150 pages and a final EIS for proposals of
unusual scope or complexity should normally be less than 300 pages.\27\
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\26\ 40 CFR 1502.8; see also www.plainlanguage.gov.
\27\ 40 CFR 1502.7.
---------------------------------------------------------------------------
In light of the growth of environmental requirements since the
publication of the CEQ Regulations, and the desire to use the EIS to
address, via integration, those requirements, it is recognized that
there will be a range of appropriate lengths of EISs. Nevertheless,
agencies should keep EISs as concise as possible (continuing to
relegate to appendices the relevant studies and technical analyses used
to support the determinations and conclusions reached in the EIS) and
no longer than necessary to comply with NEPA and the other legal and
regulatory requirements being addressed in the EIS, and to provide
decision makers and the public with the information they need to assess
the significant environmental effects of the action under review.
Length should vary with the number, complexity and significance of
potential environmental problems.\28\
---------------------------------------------------------------------------
\28\ 40 CFR 1502.2(c) (EISs ``shall be kept concise and * * *
[l]ength should vary first with potential environmental problems and
then with project size'').
---------------------------------------------------------------------------
Similarly, the CEQ guidance issued in 1981 indicated that 10-15
pages is generally appropriate for EAs.\29\ This guidance must be
balanced with the requirement to take a hard look at the impacts of the
proposed action. As with EISs, an EA's length should vary with the
scope and scale of potential environmental problems as well as the
extent to which the determination of no significant impact relies on
mitigation, rather than just with the scope and scale of the proposed
action.\30\ The EA should be no more detailed than necessary to fulfill
the functions and goals set out in the CEQ Regulations: (1) Briefly
provide sufficient evidence and analysis for determining whether to
prepare an EIS; (2) aid an agency's compliance with NEPA when no EIS is
necessary, i.e., the EA helps to identify and analyze better
alternatives and mitigation measures; and (3) facilitate preparation of
an EIS when one is necessary.\31\
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\29\ See CEQ, ``Forty Most Asked Questions Concerning CEQ's
National Environmental Policy Act Regulations'' (Mar. 16, 1981),
available at ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#36 (Question 36a
and Answer). Note that at the time of Forty-Questions memorandum CEQ
was of the opinion that mitigated Findings of No Significant Impact
were only appropriate if the mitigation measures were imposed by
statute or regulation, or submitted by an applicant or agency as
part of the original proposal. See Id. (Question 40 and Answer). CEQ
has since published guidance accepting mitigated FONSIs as another
means of efficiently concluding the NEPA process without producing
an EIS. CEQ, ``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact'' (Jan. 14, 2011), available at ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
\30\ See 40 CFR 1508.9 (stating the EA is ``a concise public
document'') and 40 CFR 1502.2(c) (interpreting the conciseness
requirement for an EIS to mean that ``[l]ength should vary first
with potential environmental problems and then with project size'').
\31\ 40 CFR 1508.9(a).
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2. Early NEPA Integration in Planning
An agency should first consider integrating the NEPA process into
planning when it structures its internal process for developing a
proposed policy, program, management plan, or project. Agencies must
integrate the NEPA process into their planning at the earliest possible
time to ensure that planning and decisions reflect environmental
values, avoid delays later in the process, and anticipate and
[[Page 14477]]
attempt to resolve potential issues.\32\ NEPA should not become an
after-the-fact process that justifies decisions that have already been
made.\33\
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\32\ 40 CFR 1501.2.
\33\ 40 CFR 1502.2(g).
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The CEQ Regulations emphasize early NEPA planning in the context of
an EIS. The scoping process can be used before an agency issues a
notice of intent to seek useful information on a proposal from agencies
and the public.\34\ For example, agencies can commence the process to
prepare an EIS during the early stages of development of a proposal, to
ensure that the environmental analysis can be completed in time for the
agency to consider the final EIS before making a decision on the
proposal.\35\ Further, an agency shall prepare an EIS so that it can
inform the decisionmaking process in a timely manner ``and will not be
used to rationalize or justify decisions already made.'' \36\
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\34\ See CEQ Memorandum to Agencies, ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations'' (Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13 (Question 13 and Answer).
\35\ See 40 CFR 1508.23 (explaining that a proposal exists as
soon as an agency ``has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated'').
\36\ 40 CFR 1502.5. For guidelines specific to different agency
activities, see 40 CFR 1502.5(a)-(d). Misuse of the NEPA process to
justify decisions already made is counterproductive and can result
in litigation that could delay and ultimately prevent a proposed
action from proceeding.
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To prepare efficient EAs, agencies should adhere to these same
principles and ensure that the EA is prepared in conjunction with the
development of the proposed action in time to inform the public and the
decisionmaker. Agencies should review their NEPA implementing
procedures as well as their NEPA practices to ensure that NEPA is
integrated into overall project planning and management to the fullest
extent possible.
The CEQ Regulations call upon agencies to provide for situations
where the initial planning process is in the hands of an applicant or
other non-Federal entity.\37\ The Regulations require Federal agencies
to address these situations in their NEPA implementing procedures.\38\
Consequently, agencies that have a reasonably foreseeable role in
actions that are initially developed by private applicants or other
non-Federal entities must plan for those situations. The NEPA
implementing procedures for such agencies must provide access to
designated staff or the policies that can inform applicants and other
non-Federal entities of studies or other information foreseeably
required for later Federal action.\39\
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\37\ See 40 CFR 1501.2(d) (non-Federal entities plan activities
prior to Federal involvement that trigger NEPA requirements).
\38\ 40 CFR 1507.3(b)(1). All agencies are required to adopt
procedures that supplement the CEQ Regulations and provide NEPA
implementing guidance that both provides agency personnel with
additional, more specific direction for implementing the procedural
provisions of NEPA and informs the public and State and local
officials of how the CEQ Regulations will be implemented in agency
decisionmaking. Agency procedures should therefore provide Federal
personnel with the direction they need to implement NEPA on a day-
to-day basis. The procedures must also provide a clear and
uncomplicated picture of what those outside the Federal government
may do to become involved in the environmental review process under
NEPA. See CEQ, ``Agency Implementing Procedures Under CEQ's NEPA
Regulations'' (Jan. 19, 1979), available at ceq.hss.doe.gov/nepa/regs/exec11979.html. Some examples of agency NEPA implementing
procedures are the Department of the Interior, ``Department Manual:
Managing the NEPA Process--National Park Service'' (May 27, 2004),
available at https://206.131.241.18/app_dm/act_getfiles.cfm?relnum=3622 and the Department of the Interior,
``Departmental Manual: Managing the NEPA Process--Bureau of Land
Management'' (May 8, 2008), available at https://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3799.
\39\ 40 CFR 1501.2(d)(1).
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Advanced planning prior to Federal involvement in an action must
also ensure that the Federal agency is able to initiate early
consultation with appropriate Tribes, States, local agencies, and
interested private persons and organizations when Federal involvement
is reasonably foreseeable.\40\ For actions initiated at the request of
a non-Federal entity, Federal agencies should begin the NEPA process
for preparing their EA or EIS as early as possible but no later than
upon receipt of a complete application.\41\ Federal agencies should,
whenever possible, guide applicants to gather and develop the
appropriate level of information and analyses in advance of submitting
an application or other request for Federal agency action. For example,
several agencies require an applicant to prepare and submit an
environmental report to help prepare the NEPA analyses and
documentation and facilitate the lead agency's independent
environmental review of the proposal.
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\40\ 40 CFR 1501.2(d)(2). Agencies should be cognizant of their
obligations under current Executive Orders 13175 (Consultation and
Coordination with Indian Tribal Governments, Nov. 6, 2000) and
112898 (Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, Feb 11, 1994), available at
ceq.hss.doe.gov/laws_and_executive_orders/executive_orders.html.
\41\ 40 CFR 1501.2(d)(3).
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3. Scoping
To effectuate integrated decision making, avoid duplication, and
focus the NEPA review, the CEQ Regulations provide for ``scoping.''
\42\ In scoping, the lead agency determines the issues that the EA or
EIS will address and identifies the significant impacts related to the
proposed action that will be considered in the analysis.\43\ To
increase efficiency, the lead agency can solicit cooperation at the
earliest possible time from other agencies that have jurisdiction by
law or special expertise on any environmental issue that should be
considered. Cooperating agencies with jurisdiction by law or special
expertise can work with the lead agency to ensure that, whenever
possible, one NEPA review process informs all the decisions needed to
determine whether and, if so, how a proposed action will proceed.\44\
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\42\ See 40 CFR 1501.7 (``There shall be an early and open
process for determining the scope of issues to be addressed and for
identifying the significant issues related to a proposed action.
This process shall be termed scoping.'').
\43\ 40 CFR 1500.4(b), (g) and 1501.7.
\44\ See 40 CFR 1501.6, 1508.5 (responsibilities of the lead
agency include the requirement to request the participation of any
other Federal agency which has jurisdiction by law). CEQ has
released previous guidance on engaging other agencies with
jurisdiction over permits and other approvals required for a
proposal to proceed. CEQ, ``Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act''
(Jan. 30, 2002), available at ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html; CEQ, ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations'' (Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14 (Question and Answer 14).
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The CEQ Regulations explicitly address the role of scoping in
preparation of an EIS. Agencies can also choose to take advantage of
scoping whenever preparing an EA. Scoping can be particularly useful
when an EA deals with uncertainty or controversy regarding potential
conflicts over the use of resources or the environmental effects of the
proposed action, or where mitigation measures are likely to play a
large role in determining whether the impacts will be reduced to a
level where a Finding of No Significant Impact can be made. A lead
agency preparing an EA may use scoping to identify and eliminate from
detailed study the issues that are not significant or that have been
covered by prior environmental review.\45\ The scoping process provides
a transparent way to identify significant environmental issues and to
deemphasize insignificant issues,\46\ thereby focusing the analysis on
the most pertinent issues and impacts.\47\ We recommend that agencies
review their NEPA implementing procedures, as well
[[Page 14478]]
as their NEPA practices, to ensure they have the option of scoping for
EAs.
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\45\ 40 CFR 1501.7(a)(3).
\46\ 40 CFR 1500.4(g).
\47\ See generally 40 CFR 1501.4(b) (agencies are to involve the
public in the preparation of EAs; the manner in which they do so is
left to the agency).
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The scoping process can be particularly helpful in identifying
opportunities to coordinate reviews and related surveys and studies
required by other laws or by executive orders. Scoping can also be used
to begin inter- and intra-governmental coordination if it is not
already ongoing. To accomplish these goals, the lead agency preparing
an EA or an EIS can choose to invite the participation of affected
Federal, State, and local agencies, any affected Indian tribe, the
proponent of the action, and ``other interested persons (including
those who might not be in accord with the action on environmental
grounds).'' \48\ In addition to facilitating coordination and the
development of required environmental reviews, scoping will help to
identify the universe of matters that need to be addressed with
particular care and flag issues for thorough consideration, thereby
defusing potential conflict that, absent early attention, could arise
later and potentially delay the timely completion of the relevant NEPA
review and agency decision.\49\
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\48\ 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. Establishing
cooperating agency status is discussed in greater detail in a CEQ
memorandum addressed to the heads of Federal agencies, entitled
``Cooperating Agencies in Implementing the Procedural Requirements
of the National Environmental Policy Act.'' CEQ, ``Cooperating
Agencies in Implementing the Procedural Requirements of the National
Environmental Policy Act'' (Jan. 30, 2002), available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\49\ In cases where a Federal agency uses scoping for an EA and
subsequently determines it is necessary to conduct an EIS, the
agency should refer to the guidance previously published by the CEQ.
See CEQ, ``Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations'' (Mar. 16, 1981), available at
ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13 (Question 13 and the
following answer state that scoping done before the assessment, and
in aid of its preparation, cannot substitute for the normal scoping
process after publication of the notice of intent, unless the
earlier public notice stated clearly that this possibility was under
consideration, and the notice of intent expressly provides that
written comments on the scope of alternatives and impacts will still
be considered).
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In sum, the scoping process provides an early opportunity to plan
collaboration with other governments,\50\ assign responsibilities,\51\
and develop the planning and decisionmaking schedule.\52\ It also
affords lead agencies the option of setting page limits for
environmental documents and setting time limits for the steps in the
NEPA process.\53\ Agencies may choose to use scoping whenever any of
these techniques can provide for the more effective and efficient
preparation of an EA.
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\50\ 40 CFR 1501.6, 1508.5. CEQ has published guidance
encouraging lead agencies to establish a formal cooperating agency
relationship with other Federal agencies as well as State, Tribal,
and local governmental entities. CEQ, ``Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act'' (Jan. 30, 2002), available at
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
\51\ See, e.g., 40 CFR 1501.7(a)(4) (a lead agency may allocate
assignments for EIS preparation and analysis among cooperating
agencies during scoping).
\52\ 40 CFR 1501.7(a)(7).
\53\ 40 CFR 1501.7(b)(1)-(2), 1501.8.
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4. Inter-Governmental Coordination (State, Local, or Tribal
Environmental Reviews)
CEQ encourages Federal agencies to collaborate with Tribal, State,
and local governments to the fullest extent possible to reduce
duplication, unless the agencies are specifically barred from doing so
by some other law.\54\ The CEQ Regulations explicitly provide for
agencies to conduct joint planning processes, joint environmental
research and studies, joint public hearings (except where otherwise
precluded by statute), and joint environmental assessments.\55\ Federal
agencies should explore every reasonable opportunity to integrate the
requirements of NEPA with the external planning and environmental
reviews required on the Federal as well as the State, Tribal, and local
levels of government so that those reviews can run concurrently rather
than consecutively.\56\
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\54\ 40 CFR 1506.2(b) (calling for collaboration ``to the
fullest extent possible'').
\55\ 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) (encouraging
Federal agencies to eliminate duplication with State and local
procedures through joint preparation of documents).
\56\ 40 CFR 1500.2(c). This point is reiterated throughout the
CEQ Regulations.
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Where State law or local ordinances contain environmental impact
analysis and documentation requirements in addition to, but not in
conflict with, those in NEPA, the CEQ Regulations provide authority for
producing joint EISs.\57\ In such cases, Federal agencies shall
cooperate with the State, Tribal, and local governments to integrate
environmental impact analysis and documentation requirements so that
one document will suffice for complying with as many applicable
environmental laws and requirements as practicable. Agencies should
adhere to these same principles when preparing an EA. Federal agencies
should seek efficiencies and avoid delay by attempting to meet
applicable non-Federal NEPA-like requirements in conjunction with
either an EA or an EIS wherever possible.\58\
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\57\ 40 CFR 1506.2(c).
\58\ Although joint processes usually lead to greater efficiency
and better decisionmaking, a joint process may become unwieldy and
the result is that, for some projects, combining a State and Federal
process is not practical.
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The CEQ Regulations also require that a Federal agency preparing an
EIS better integrate the EIS into non-Federal planning processes by
discussing and explaining any inconsistency of a proposed Federal
action with any approved State or local plans and laws.\59\ When
preparing an EA or EIS, if an inconsistency with any approved Tribal,
State, or local plan or law exists, the Federal agency should describe
the extent to which it will reconcile its proposed action with the non-
Federal plan or law.\60\
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\59\ 40 CFR 1506.2(d).
\60\ 40 CFR 1506.2(d).
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5. Coordinating Reviews and Documents Under Other Applicable Laws
Agencies must integrate, to the fullest extent possible, their
draft EIS with environmental impact analyses and related surveys and
studies required by other statutes or Executive Orders.\61\ Coordinated
and concurrent environmental reviews are appropriate whenever other
analyses, surveys, and studies will consider the same issues and
information as a NEPA analysis. Such coordination should be considered
when preparing an EA as well as when preparing an EIS. Techniques
available to agencies when coordinating a combined or a concurrent
process include combining the scoping, requests for public comment, and
preparation and display of responses to public comments.
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\61\ 40 CFR 1502.25(a). Examples provided in the Regulation are:
The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.); the
National Historic Preservation Act (16 U.S.C. 470 et seq.); and the
Endangered Species Act (16 U.S.C. 1531 et seq.).
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The goal should be to conduct concurrent rather than sequential
processes whenever appropriate. In situations where one aspect of a
project is within the particular expertise or jurisdiction of another
agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more
efficient.
A coordinated or concurrent process may provide a better basis for
informed decision making, or at least achieve the same result as
separate or consecutive processes more quickly and with less potential
for unnecessary duplication of effort. In addition to integrating the
reviews and analyses, the CEQ Regulations allow an environmental
document that complies with NEPA to
[[Page 14479]]
be combined with a subsequent agency document to reduce duplication and
paperwork.\62\
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\62\ 40 CFR 1506.4, 1500.4(k), 1500.4(n).
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6. Adoption
The adoption of one Federal agency's EIS, or a portion of that EIS,
by another Federal agency is an efficiency that the CEQ Regulations
provide.\63\ An agency preparing an EA should similarly consider
adopting another agency's EA or EIS when the EA or EIS, or a portion
thereof, addresses the proposed action and meets the standards for an
adequate analysis under NEPA, the CEQ's Regulations, and the adopting
agency's NEPA implementing procedures.
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\63\ 40 CFR 1506.3.
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The CEQ Regulations require agencies to involve agencies,
applicants, and the public when preparing an EA; however, they do not
require agencies to do so by preparing a draft or final EA for public
review or comment.\64\ If an agency's implementing NEPA procedures
establish requirements for public review and comment when preparing an
EA, then the agency must provide a similar process when it adopts
another agency's EA, but may use the same efficiencies that are
available when adopting another agency's EIS.
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\64\ See generally 40 CFR 1501.4(b), 1506.6 (both regulations
direct agencies to involve the public in the preparation of EAs;
however, the manner in which they do so is left to the agency).
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If the actions covered by the original EIS and the proposed action
are substantially the same, the agency adopting the EIS is not required
to recirculate the EIS as a draft for public review and comment. The
same is true for the adoption of another agency's EA when the original
and proposed actions are substantially the same. In addition, in cases
where the adopting agency is also a cooperating agency in the
preparation of an EIS, it may adopt the lead agency's EIS without
recirculating the EIS as a draft or as a final EIS when, after an
independent review, it concludes that the lead agency has adequately
addressed the adopting agency's comments and suggestions.\65\
Similarly, when the adopting agency was a cooperating agency in the
preparation of an EA, it may adopt the EA without recirculating the EA.
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\65\ 40 CFR 1506.3(c).
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7. Incorporation by Reference \66\
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\66\ This guidance does not address tiering. Further guidance
will be developed to address the use of broad, programmatic,
analyses to focus future reviews and the subsequent, tiered, review
of site- or project- specific proposed actions.
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Incorporation by reference is another method that provides
efficiency and timesaving when preparing either an EA or an EIS. The
CEQ Regulations direct agencies to incorporate by reference material
into an EIS to reduce the size of the EIS and avoid duplicative
effort.\67\ An agency must provide a citation that clearly identifies
the incorporated material in an EIS and briefly describe the
content.\68\ The brief description should identify the referenced
materials and the entity (Federal or non-Federal) that prepared the
materials, inform the reader of the purpose and value of those
materials (e.g., explain how the information or analyses are relevant
to the issues associated with the proposal under review), and synopsize
the basis provided in those materials that support any conclusions
being incorporated. An agency may not incorporate any material by
reference in an EIS unless the material is reasonably available for
inspection by potentially interested persons within the time allowed
for comment.\69\ There are many techniques available to make the
referenced material readily available such as: Placing the relevant
materials in an appendix; providing a hyperlink that provides Internet
access to the materials; and placing materials in local libraries or
facilities accessible to the public. Agencies can, consistent with NEPA
and the CEQ Regulations, incorporate by reference analyses and
information from existing documents into an EA provided the material
has been appropriately cited and described, and the materials are
reasonably available for review by interested parties.
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\67\ 40 CFR 1502.21.
\68\ 40 CFR 1502.21.
\69\ 40 CFR 1502.21 (material based on proprietary data which is
itself not available for review and comment cannot be incorporated
by reference).
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8. Expediting Responses to Comments
Agencies should provide a reasonable and proportionate response to
comments on a draft EIS by focusing on the environmental issues and
information conveyed by the comments. When preparing a final EIS, if
the draft EIS complies with NEPA, CEQ regulations, and agency
implementing procedures, the agency may use the draft EIS as the final
EIS under certain conditions. If changes in response to comments are
minor and are limited to factual corrections and/or explanations of why
the comments do not warrant further agency response, agencies may write
them on errata sheets and attach them to the statement instead of
rewriting the draft statement.\70\ In such cases, the agency must
circulate and make available for public review as the final EIS only
the comments, the responses and the changes.\71\ The comments,
responses, and changes, as well as the draft document and a new cover
sheet need to be filed to make the EIS final, under those
circumstances.\72\
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\70\ 40 CFR 1503.4(c), 1500.4(m).
\71\ 40 CFR 1503.4(c).
\72\ 40 CFR 1503.4(c).
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Similarly, if an agency issues an EA for comment and the changes in
response to comments are minor and limited to factual corrections and/
or explanations of why the comments do not warrant further agency
response, then the agency may prepare a similar cover and errata sheet
and use its draft EA as the final EA. When circulating draft EAs or
EISs for public review and comment, we recommend agencies facilitate
public review and comment by also publishing the EISs and EAs, and
subsequently the comments received, on agency Web sites.
9. Clear Time Lines for NEPA Reviews
Establishing appropriate and predictable time limits promotes the
efficiency of the NEPA process.\73\ The CEQ Regulations recommend that
agencies designate a person (such as a project manager or a person in
the agency's office with NEPA responsibilities) to lead and shepherd
the NEPA review to expedite the process.\74\ The CEQ Regulations do not
prescribe universal time limits for the entire NEPA process; instead
they set certain minimum time limits for the various portions of the
NEPA process.\75\ The CEQ Regulations do encourage Federal agencies to
set appropriate time limits for individual actions, however, and
provide a list of factors to consider in establishing timelines.\76\
Those factors include: The potential for environmental harm; the size
of the proposed action; other time limits imposed on the action by
other statutes, regulations, or Executive Orders; the degree of public
need for the proposed action and the consequences of delay; and the
need for a reasonable opportunity for public review.
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\73\ 40 CFR 1500.5(e).
\74\ 40 CFR 1501.8(b)(3).
\75\ See 40 CFR 1506.10 (setting 90 day time period between EPA
publication of the notice of availability of a draft EIS and the
Record of Decision, 30 day time period between EPA publication of
the notice of availability of a final EIS and the Record of
Decision, and 45 days for comment on a draft EIS).
\76\ CEQ encourages Federal agencies to set time limits
consistent with the time intervals required by Sec. 1506.10. 40 CFR
1501.8.
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The CEQ Regulations refer to the EIS process when describing the
``constituent parts of the NEPA process'' to which time limits may
apply, require agencies to set time limits at the request
[[Page 14480]]
of an applicant, and allow agencies to set time limits at the request
of other interested parties.\77\ It is entirely consistent with the
purposes and goals of NEPA and with the CEQ Regulations for agencies to
consider the same factors and determine appropriate time limits for the
various phases of the EA process when requested by applicants, Tribes,
States, local agencies, or members of the public.
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\77\ 40 CFR 1501.8(b), (c).
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Conclusion
This guidance highlights for agencies preparing either an EA or an
EIS the ability to employ all the methods provided in the CEQ
regulations to prepare concise and timely NEPA reviews. Using methods
such as integrating planning and environmental reviews and permitting,
coordinating multi-agency or multi-governmental reviews and approvals,
and setting schedules for completing the environmental review will
assist agencies in preparing efficient and timely EAs and EISs
consistent with legal precedent and agency NEPA experience and
practice.
Nancy H. Sutley,
Chair, Council on Environmental Quality.
[FR Doc. 2012-5812 Filed 3-9-12; 8:45 am]
BILLING CODE 3225-F2-P
