National Environmental Policy Act Implementing Procedures and Categorical Exclusions, 79292-79300 [2015-31701]

Agencies

• Denali Commission

[Federal Register Volume 80, Number 244 (Monday, December 21, 2015)]
[Proposed Rules]
[Pages 79292-79300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31701]


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DENALI COMMISSION

45 CFR Chapter IX


National Environmental Policy Act Implementing Procedures and 
Categorical Exclusions

AGENCY: Denali Commission.

ACTION: Notice of proposed NEPA implementation rule; request for public 
comment.

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SUMMARY: The Denali Commission proposes to establish 45 CFR Chapter IX 
and to add regulations for implementing the National Environmental 
Policy Act of 1969 (NEPA), as amended, and invites public comment on 
the proposed rule. All comments will be considered in preparing the 
final regulations, which will be made available to the public on the 
Commission's internet site at https://www.denali.gov.

DATES: Comments and related material must be received by January 20, 
2016.

ADDRESSES: You may submit comments to this rule by any of the following 
methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail, Hand Delivery, or Courier: Denali Commission, Attn: NEPA 
Comments; 510 L Street, Suite 410; Anchorage, AK 99501.
    All written comments will be available for public inspection during 
regular work hours at the 510 L Street, Suite 410 address listed above.

FOR FURTHER INFORMATION CONTACT: Mr. John Whittington, 907-271-1414.

SUPPLEMENTARY INFORMATION:

General

    Introduced by Congress in 1998, the Denali Commission (Commission) 
is an innovative federal-state partnership designed to provide critical 
utilities, infrastructure, and economic support throughout Alaska. With 
the creation of the Commission, Congress acknowledged the need for 
increased inter-agency cooperation and focus on Alaska's remote 
communities. Since its first meeting in April 1999, the Commission is 
credited with providing numerous cost-shared infrastructure projects 
across the State that exemplify effective and efficient partnership 
between federal and state agencies, and the private sector.
    The National Environmental Policy Act (NEPA) and implementing 
regulations promulgated by the Council on Environmental Quality (CEQ) 
(40 CFR parts 1500-1508) establish a broad national policy to protect 
the quality of the human environment and to ensure that environmental 
considerations and associated public concerns are given careful 
attention and appropriate weight in all decisions of the federal 
government. Sections 102(2) of NEPA and 40 CFR 1505.1 and 1507.3 
require federal agencies to develop and, as needed, revise implementing 
procedures consistent with the CEQ regulations. The Denali Commission 
proposes the following NEPA implementing procedures for complying with 
NEPA and the CEQ regulations. The remaining sections of SUPPLEMENTARY 
INFORMATION will provide background. Following the SUPPLEMENTARY 
INFORMATION is the text of the proposed procedures.

Background

    In accordance with CEQ regulations (40 CFR 1507.3), the Commission 
consulted with the CEQ prior to publication of the proposed rule. On 
August 10, 2004, the Commission published a proposed rule in the 
Federal Register (69 FR 48435) and invited public comment. The 
Commission considered the comments received on the 2004 proposed rule. 
On March 6, 2006, however, the Commission published a notice in the 
Federal Register withdrawing the 2004 proposed rule (71 FR 13563). At 
the time, the Commission intended to adopt guidelines for implementing 
NEPA instead of promulgating a final rule. Since that time, however, 
the Commission has concluded that the approach outlined in the 2004 
proposed rule was appropriate and is issuing this revised version of 
the proposed rule for review and comment before proceeding to 
promulgate a final rule. The rulemaking process maximizes public 
involvement during the development of the regulations, and once 
finalized, regulations provide a consistent NEPA approach internally 
and with cooperating agencies.
    The proposed rule published today reflects the Commission's 
consideration of and responses to the public comments received on the 
2004 proposed rule.

Responses to 2004 Comments

    The Commission received, reviewed and considered two letters of 
comment on the August 10, 2004 Federal Register notice. The comments 
and changes are discussed below by section and paragraph of the 
proposed rule. All sections addressed in the comment letters are 
discussed.

Subpart A--General

Section 900.103 Terms and Abbreviations

    A comment was made to clarify the term ``applicant'' in subsection 
(a)(2). We reviewed the subsection and have clarified that an applicant 
can be a federal, state and local government or non-governmental 
partner or organization and also added ``An

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applicant may also be a partner organization in receipt of award 
funds.''
    One comment noted ambiguity between the use of ``responsible 
official'' and ``approving official'' in Sec. Sec.  900.106 and 
900.302. To clarify, we added a definition of ``Approving Official'' in 
this section and made changes as noted in the section headers below. We 
no longer use the term ``responsible official.''

Section 900.104 Applicability

    The title has been changed to Federal and Intergovernmental 
Relationships to better describe the contents of the section. The 
description of those relationships and the Commission's 
responsibilities are also more fully explained in keeping with the 
Commission responsibilities under NEPA as set out in Sec.  900.106 and 
as described in the following section.

Section 900.105 Applicant Responsibility

    One commenter said that environmental analysis responsibility was 
inappropriately delegated to applicants in this section, and noted that 
it remains the Commission's obligation to evaluate and take 
responsibility for the environmental analysis. We agree with the 
commenter that it is the Commission's obligation to evaluate the 
potential impacts of a proposed federal action (40 CFR 1506.5). We 
disagree with the commenter's conclusion that the proposed rule 
inappropriately delegates this responsibility to our applicants. The 
Commission's responsibilities outlined in Sec.  900.106 clearly state 
that the Commission will evaluate, take responsibility for the scope 
and content of documents, and make the environmental finding. 
Clarifying language has been added to this section as well as sections 
104, 108, 201, 303, 305, 402 and 403 to ensure that the Commission's 
responsibilities for meeting its NEPA obligations, such as those for 
conducting scoping (40 CFR 1501.7) and obtaining, assessing, and 
addressing comments (40 CFR 1503.1 and 1503.4), are clearly stated.

Section 900.106 Denali Commission Responsibility

    To further clarify from the comment noted above regarding the 
``approving official,'' we added language to indicate the Federal Co-
Chair shall designate the Commission's Approving Official whose 
responsibilities include providing direction and guidance to 
applicants.

Section 900.108 Public Involvement

    The Public involvement section was revised to include a 
``variance'' provision, allowing the Commission, in the interests of 
national security or the public health, safety, or welfare, to reduce 
any public comment periods that are not required by the CEQ 
Regulations, in new paragraph (d) in this section. The 2004 proposed 
rule included the variance provision as Sec.  900.202(c) in the 
Emergency actions and variance section, and this was interpreted as 
being limited to public comment periods that apply to emergency 
actions. On the contrary, this provision, which also requires the 
Commission to publish a Federal Register notice, notify interested 
parties, and provide the rationale for reducing public comment periods, 
applies more broadly and is central to public involvement. It therefore 
is appropriate to include it in Sec.  900.108.

Subpart B--Environmental Review Procedures

Section 900.202 Emergency Actions and Variance

    One commenter objected to proposed paragraph 900.202(c) allowing 
the Commission to reduce any time periods that are not required by the 
CEQ regulations in the interests of national security or the public 
health, safety, or welfare, and suggested that we limit its scope to 
emergency actions outlined in paragraphs (a) and (b). We disagree. 
Paragraphs (a) and (b) refer to emergency actions, whereas paragraph 
(c) applies only to time periods not required by the CEQ regulations. 
We propose moving paragraph (c) from the Emergency actions Sec.  
900.202 to the Public involvement Sec.  900.108 to underscore that it 
is not limited to emergency actions and that it has wider application. 
This provision is not designed to sidestep NEPA requirements, but 
rather to allow some flexibility within the Commission's own time 
periods, and this is now explicitly stated. Further, the threshold of 
``national security or the public health, safety and welfare'' is high, 
and any time reduction requires both justification and notification.

Section 900.204 Categorical Exclusions

    A commenter suggested we include language from 40 CFR 
1508.27(b)(10) as an extraordinary circumstance. We agree and have 
added paragraph (c)(10) to this section. We have also more fully 
explained the use of the checklist and the application of extraordinary 
circumstances.
    Another suggestion under this section was to include 
Congressionally delegated LUD II's (USDA Forest Service Land Use 
Designation II) and areas important for customary and traditional uses 
of fish and wildlife resources, recreation, and critical wildlife 
habitat values, such as Old Growth Habitat as designated by the USDA 
Forest Service. We appreciate the suggestion but disagree that the 
additions are necessary. Critical wildlife habitats are covered under 
paragraph (c)(12)(ii) of this section, while paragraph (c)(12)(iii) 
covers natural resources and unique geographic characteristics. The 
listing of sensitive resources in paragraphs (c)(12)(i) through (iii) 
is not intended to be exhaustive, and the following list is more 
comprehensive than that listed in the CEQ regulations at 40 CFR 
1508.27(b)(3). Further, in the event that a proposal does not have an 
adverse effect on an environmentally sensitive resource but is highly 
controversial, that will be considered an extraordinary circumstance 
and require environmental review.

Section 900.205 Environmental Assessment

    In a different section a commenter asked for direction regarding 
FONSIs. After careful review, we found each reference to both FONSIs 
and NOIs and noted that each shall be prepared in accordance with this 
part. In this section, we clarified that FONSI's shall be prepared in 
accordance with subpart C of this part.

Section 900.207 Programmatic Environmental Reviews

    We propose to include a new section on Programmatic environmental 
reviews in Sec.  900.207. This section acknowledges the Commission's 
ability to prepare or adopt programmatic NEPA documents, include 
programmatic EAs or programmatic EISs, and to tier to those documents 
when conducting NEPA reviews for subsequent project-specific actions. 
Proposed Sec.  900.207 is intended to facilitate the Commission's use 
of programmatic EAs and programmatic EISs consistent with the CEQ final 
guidance, ``Effective Use of Programmatic NEPA Reviews'' (December 18, 
2014).\1\
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    \1\ The CEQ guidance is available at: https://energy.gov/nepa/downloads/final-guidance-effective-use-programmatic-nepa-review.

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Subpart C--Environmental Assessments

Section 900.302 Adoption and Incorporation by Reference

    For clarity, we now refer to the ``Commission,'' rather than the 
``responsible Commission official.'' We note that FONSI's and NOI's 
shall be prepared in accordance with this part. We also explain the 
Commission's role and responsibilities and reiterate the principles set 
out in Sec.  900.106, when applicants are involved.

Section 900.303 Public Involvement

    The Commission's responsibility for providing notice of the 
availability of environmental documents has been clearly stated in 
paragraph (b).

 Section 900.304 Actions Resulting From Assessment

    One commenter noted that FONSI's are referenced twice in this 
section, but there is no information as to the content or availability 
of the FONSI. We have reviewed the section and added clarification 
directing readers to Sec.  900.305.

Section 900.305 Findings of No Significant Impact

    The Commission's role and responsibilities have been clarified and 
the section states that the Commission is responsible for the 
governmental functions of compiling the public hearing summary or 
minutes, and written comments and responses record.

Section 900.306 Proposals Normally Requiring an EA

    A suggestion was made to include language regarding sensitive 
resources in Sec.  900.204 in paragraph (c) of this section to include 
consideration of other environmental processes. Sensitive resources are 
appropriately considered an extraordinary circumstance covered under 
Sec.  900.204(c).

Subpart D--Environmental Impact Statements

Section 900.402 Preparation and Filing of Draft and Final EISs

    The role of an applicant and the Commission's role and 
responsibilities have been clarified. Language has been added to 
reemphasize the responsibilities of the Commission set out in Sec.  
900.106.

Section 900.405 Proposals Normally Requiring an EIS

    A commenter noted appreciation for our effort to provide examples 
of when to prepare an EIS, but thought our listing unreasonably narrow. 
We appreciate the comment, but disagree with the conclusion. The 
listing is not meant to be a comprehensive list, merely a guide. Our 
regulations, at Sec.  900.206, do provide that an EIS is required when 
a project is determined to have a potentially significant impact on the 
human environment (40 CFR 1502.3) as the commenter requests.

Appendix A to Part 900--Categorical Exclusions

    A commenter noted the language in A5 could be construed to remove 
NEPA review at an early stage. We reviewed the section and disagree. 
The intent of this CATEX is to exclude the actual planning and design 
process of a proposal from NEPA review, not to exclude the entire 
proposal. In fact, the NEPA review begins in the facility planning and 
design phase. This CATEX is necessary to get to the point where NEPA 
review can begin.
    A commenter was concerned that the actions in category A6 could 
disturb fish and wildlife populations or allow for actions incompatible 
with an area's conservation system unit values. We have included 
sensitive resources and subsistence activities in the list of 
extraordinary circumstances in Sec.  900.204(c), which will address 
this concern.

List of Subjects in 45 CFR Part 900

    Administrative practice and procedure, Environmental impact 
statements, Environmental protection.

    For the reasons stated in the preamble, the Denali Commission 
proposes to establish Title 45 of the CFR, Chapter IX, consisting of 
parts 900 through 999 to read as follows:

CHAPTER IX--DENALI COMMISSION

PART 900--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES

Subpart A--General
Sec.
900.101 Purpose.
900.102 Environmental policy.
900.103 Terms and abbreviations.
900.104 Federal and Intergovernmental Relationships.
900.105 Applicant responsibility.
900.106 Denali Commission responsibility.
900.107 Role of lead and cooperating agencies.
900.108 Public involvement.
Subpart B--Environmental Review Procedures
900.201 Environmental review process.
900.202 Emergency actions.
900.203 Determination of federal actions.
900.204 Categorical exclusions.
900.205 Environmental assessment.
900.206 Environmental impact statement.
900.207 Programmatic environmental reviews.
Subpart C--Environmental Assessments
900.301 Content.
900.302 Adoption and incorporation by reference.
900.303 Public involvement.
900.304 Actions resulting from assessment.
900.305 Findings of no significant impact.
900.306 Proposals normally requiring an EA.
Subpart D--Environmental Impact Statements
900.401 Notice of Intent and Scoping.
900.402 Preparation and filing of draft and final EISs.
900.403 Supplemental EIS.
900.404 Adoption.
900.405 Proposals normally requiring an EIS.
Appendix A to Part 900--Categorical Exclusions.
901-999 [RESERVED]

    Authority: 42 U.S.C. 3121, 4321; 40 CFR parts 1500 through1508.

Subpart A--General


Sec.  900.101  Purpose.

    This regulation (45 CFR part 900) prescribes the policies and 
procedures of the Denali Commission (Commission) for implementing the 
National Environmental Policy Act of 1969 (NEPA) as amended (42 U.S.C. 
4321-4347) and the Council on Environmental Quality (CEQ) Regulations 
for Implementing the Procedural Provisions of NEPA (40 CFR parts 1500 
through 1508). This regulation also addresses other related federal 
environmental laws, statutes, regulations, and Executive Orders that 
apply to Commission administrative actions. This part supplements, and 
is to be used in conjunction with, 40 CFR parts 1500 through 1508, 
consistent with 40 CFR 1507.3.


Sec.  900.102  Environmental policy.

    It is the policy of the Commission to:
    (a) Comply with the procedures and policies of NEPA and other 
related environmental laws, regulations, and orders applicable to 
Commission actions;
    (b) Provide guidance to applicants responsible for ensuring that 
proposals comply with all appropriate Commission requirements;
    (c) Integrate NEPA requirements and other planning and 
environmental review procedures required by law or Commission practice 
so that all such procedures run concurrently rather than consecutively;
    (d) Encourage and facilitate public involvement in Commission 
decisions that affect the quality of the human environment;

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    (e) Use the NEPA process to identify and assess reasonable 
alternatives to proposed Commission actions to avoid or minimize 
adverse effects upon the quality of the human environment;
    (f) Use all practicable means consistent with NEPA and other 
essential considerations of national policy to restore or enhance the 
quality of the human environment and avoid or minimize any possible 
adverse effects of the Commission's actions upon the quality of the 
human environment; and
    (g) Consider and give important weight to factors including 
customary and traditional uses of resources, recreation, and the 
objectives of Federal, regional, State, local and tribal land use 
plans, policies, and controls for the area concerned in developing 
proposals and making decisions in order to achieve a proper balance 
between the development and utilization of natural, cultural and human 
resources and the protection and enhancement of environmental quality 
(see NEPA section 101 and 40 CFR 1508.14). In particular the Commission 
will consider potential effects on subsistence activities, which are 
critically important to the daily existence of Alaska Native villages.


Sec.  900.103  Terms and abbreviations.

    (a) For the purposes of this part, the definitions in the CEQ 
Regulations, 40 CFR parts 1500 through 1508, are adopted and 
supplemented as set out below. In the event of a conflict the CEQ 
Regulations apply.
    (1) Action. Action and Federal action as defined in 40 CFR 1508.18, 
include projects, programs, plans, or policies, subject to the 
Commission's control and responsibility.
    (2) Applicant. The federal, state, local government or non-
governmental partner or organization applying to the Commission for 
financial assistance or other approval. An applicant may also be a 
partner organization in receipt of award funds.
    (3) Approving Official. The Denali Commission staff member 
designated by the Federal Co-Chair or his/her designee to fulfill the 
responsibilities defined in Sec.  900.106.
    (4) Commission proposal (or proposal). A proposal, as defined at 40 
CFR 1508.23, is a Commission proposal whether initiated by the 
Commission, another federal agency, or an applicant.
    (5) Federal Co-Chair. One of the seven members of the Commission, 
appointed by the Secretary of Commerce, as defined in the Denali 
Commission Act of 1998, 42 U.S.C. 3121, Public Law 105-277.
    (a) The following abbreviations are used throughout this part:
    (1) CATEX--Categorical exclusions;
    (2) CEQ--Council on Environmental Quality;
    (3) EA--Environmental assessment;
    (4) EIS--Environmental impact statement;
    (5) FONSI--Finding of no significant impact;
    (6) NEPA--National Environmental Policy Act of 1969, as amended;
    (7) NOI--Notice of intent;
    (8) ROD--Record of decision.


Sec.  900.104  Federal and Intergovernmental Relationships.

    The Denali Commission was created to deliver the services of the 
federal government in the most cost-effective manner practicable. In 
order to reduce administrative and overhead costs, the Commission 
partners with federal, state and local agencies and Alaska Native 
villages and commonly depends on these governmental agencies for 
project management. Consequently, the Commission generally relies on 
the expertise and processes already in use by partnering agencies to 
help prepare Commission NEPA analyses and documents.
    (a) With federal partners, the Commission will work as either a 
joint lead agency (40 CFR 1501.5 and 1508.16) or cooperating agency (40 
CFR 1501.6 and 1508.5). The Commission may invite other Federal 
agencies to serve as lead agency or as a cooperating agency.
    (b) Consistent with 40 CFR 1508.5, the Commission will typically 
invite Alaska Native villages and state and local government partners 
to serve as cooperating agencies.
    (c) Requests for the Commission to serve as a lead agency (40 CFR 
1501.5(d)), for CEQ to determine which Federal agency shall be the lead 
agency (40 CFR 1501.5(e)), or for the Commission to serve as a 
cooperating agency (40 CFR 1501.6(a)(1)) shall be mailed to the Federal 
Co-Chair, Denali Commission; 510 L Street, Suite 410; Anchorage, AK 
99501.


Sec.  900.105  Applicant responsibility.

    (b) Applicants shall work under Commission direction provided by 
the Approving Official, and assist the Commission in fulfilling its 
NEPA obligations by preparing NEPA analyses and documents that comply 
with the provisions of NEPA (42 U.S.C. 4321-4347), the CEQ regulations 
(40 CFR parts 1500 through 1508), and the requirements set forth in 
this part.
    (c) Applicants shall follow Commission direction when they assist 
the Commission with the following responsibilities, among others:
    (1) Prepare and disseminate applicable environmental documentation 
concurrent with a proposal's engineering, planning, and design;
    (2) Create and distribute public notices;
    (3) Coordinate public hearings and meetings as required;
    (4) Submit all environmental documents created pursuant to this 
part to the Commission for review and approval before public 
distribution;
    (5) Participate in all Commission-conducted hearings or meetings;
    (6) Consult with the Commission prior to obtaining the services of 
an environmental consultant; in the case that an EIS is required, the 
consultant or contractor will be selected by the Commission; and
    (7) Implement mitigation measures included as voluntary commitments 
by the applicant or as requirements of the applicant in environmental 
documents.


Sec.  900.106  Denali Commission responsibility.

    (a) The Federal Co-Chair or his/her designee shall designate an 
Approving Official for each Commission proposal, and shall provide 
environmental guidance to the Approving Official;
    (b) The Approving Official shall provide direction and guidance to 
the applicant as well as identification and development of required 
analyses and documentation;
    (c) The Approving Official shall make an independent evaluation of 
the environmental issues, take responsibility for the scope and content 
of the environmental document (EA or EIS), and make the environmental 
finding; and
    (d) The Approving Official shall ensure mitigation measures 
included in environmental documents are implemented.


Sec.  900.107  Role of lead and cooperating agencies.

    In accordance with Sec.  900.104, the Commission may defer the lead 
agency role to other federal agencies in accordance with 40 CFR 1501.5, 
and the Commission will then exercise its role as a cooperating agency 
in accordance with 40 CFR 1501.6.


Sec.  900.108  Public involvement.

    (a) When public involvement is required pursuant to subparts C and 
D of this part, interested persons and the affected public shall be 
provided notice of the availability of environmental documents, NEPA-
related hearings, and

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public meetings. Such notice will be made on the Commission Web site 
and other means such that the community is notified (e.g., community 
postings, newspaper, radio or television).
    (b) Applicants shall assist the Commission in providing the 
opportunity for public participation and considering the public 
comments on the proposal as described in subparts C and D of this part.
    (c) Interested persons can obtain information or status reports on 
EISs and other elements of the NEPA process from the Commission's 
office at 510 L Street, Suite 410; Anchorage, Alaska 99501; or on the 
Commission Web site at https://www.denali.gov. Telephone: (907) 271-
1414.
    (d) In the interests of national security or the public health, 
safety, or welfare, the Commission may reduce any time periods that the 
Commission has established and that are not required by the CEQ 
Regulations. The Commission shall publish a notice on the Web site at 
https://www.denali.gov and notify interested parties (see 40 CFR 1506.6) 
specifying the revised time periods for the proposed action and the 
rationale for the reduction.

Subpart B--Environmental Review Procedures


Sec.  900.201  Environmental review process.

    (a) General. The environmental review process is the investigation 
of potential environmental impacts to determine the environmental 
process to be followed and to assist in the preparation of the 
environmental document.
    (b) Early coordination. Applicants will contact the Commission and 
work with the Approving Official to begin the environmental review 
process as soon as Denali Commission assistance is projected. 
Environmental issues shall be identified and considered early in the 
proposal planning process. A systematic, interdisciplinary approach 
that includes community involvement and intergovernmental coordination 
to expand the potential sources of information and identify areas of 
concern will be used. Environmental permits and other forms of 
approval, concurrence, or consultation may be required. The planning 
process shall include permitting and other review processes to ensure 
that necessary information will be collected and provided to permitting 
and reviewing agencies in a timely manner.


Sec.  900.202  Emergency actions.

    (a) General. Emergency circumstances may require immediate actions 
that preclude following standard NEPA processes. These alternative 
arrangements are limited to those actions that are necessary to control 
the immediate impacts of the emergency. In the event of emergency 
circumstances, the Approving Official should coordinate with the 
Federal Co-Chair as soon as practicable. When time permits, 
environmental documentation should be prepared in accordance with these 
NEPA implementing procedures. Immediate emergency actions necessary to 
protect the lives and safety of the public or prevent adverse impacts 
to ecological resources and functions should never be delayed in order 
to comply with NEPA. These actions should be taken as soon as is 
necessary to ensure the protection and safety of the public and the 
protection of ecological resources and functions. Alternative 
arrangements for NEPA compliance are permitted for emergency actions 
pursuant to paragraphs (b) through (d) of this section.
    (b) Categorical Exclusion (CATEX). When emergency circumstances 
make it necessary to determine whether an extraordinary circumstance 
would preclude the use of a CATEX, the Approving Official shall make 
the determination as soon as practicable. If an extraordinary 
circumstance exists, the Approving Official shall comply with 
paragraphs (c) and (d) of this section, as applicable.
    (c) Environmental assessment (EA). When emergency circumstances 
make it necessary to take an action that requires an EA before the EA 
can be completed, the Approving Official will consult with the Federal 
Co-Chair to develop alternative arrangements to meet the requirements 
of these NEPA implementing procedures and CEQ regulations pertaining to 
EAs. Alternative arrangements should focus on minimizing adverse 
environmental impacts of the proposed action and the emergency. To the 
maximum extent practicable, these alternative arrangements should 
include the content, interagency coordination, and public notification 
and involvement that would normally be undertaken for an EA for the 
action at issue and cannot alter the requirements of the CEQ 
regulations at 40 CFR 1508.9(a)(1) and (b). The Federal Co-Chair may 
grant an alternative arrangement. Any alternative arrangement shall be 
documented. The Federal Co-Chair will inform CEQ of the alternative 
arrangements at the earliest opportunity.
    (d) Environmental Impact Statement (EIS). CEQ may grant alternative 
arrangements for, but not eliminate, NEPA compliance where emergency 
circumstances make it necessary to take actions with significant 
environmental impacts without observing other provisions of these NEPA 
implementing procedures and the CEQ regulations (see 40 CFR 1506.11). 
In these situations, the processing times may be reduced or, if the 
emergency situation warrants, preparation and processing of EISs may be 
abbreviated. A request for alternative arrangements must be submitted 
to CEQ and notice of a potential request should be provided to CEQ at 
the earliest opportunity. Before making the request, the Approving 
Official shall consult with the Federal Co-Chair. For projects 
undertaken by an applicant, the Approving Official will inform the 
Federal Co-Chair about the emergency. The Federal Co-Chair will consult 
CEQ requesting the alternative arrangements for complying with NEPA.


Sec.  900.203  Determination of federal actions.

    (a) The Commission shall determine, under the procedures detailed 
in the CEQ Regulations (40 CFR parts 1500 through 1508), and this part, 
whether any Commission proposal:
    (1) Is categorically excluded from preparation of either an EA or 
an EIS;
    (2) Requires preparation of an EA; or
    (3) Requires preparation of an EIS.
    (b) Notwithstanding any other provision of this part, the 
Commission may prepare a NEPA document for any Commission action at any 
time in order to further the purposes of NEPA. This NEPA document may 
be done to analyze the consequences of ongoing activities, to support 
Commission planning, to assess the need for mitigation, to disclose 
fully the potential environmental consequences of Commission actions, 
or for any other reason. Documents prepared under this paragraph shall 
be prepared in the same manner as Commission documents prepared under 
this part.


Sec.  900.204  Categorical exclusions.

    (a) General. A categorical exclusion (CATEX) is defined in 40 CFR 
1508.4 as a category of actions which do not individually or 
cumulatively have a significant effect on the human environment and, 
for which in the absence of extraordinary circumstances or sensitive 
resources, neither an EA nor an EIS is required. Actions that meet the 
conditions in paragraph (b) of this section and are listed in section A 
of Appendix A of this part can be categorically excluded from further 
analysis and documentation in an EA or EIS. Actions that meet the 
screening conditions in paragraph (b) of this section and are listed in 
section B of Appendix A require satisfactory

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completion of a Denali Commission CATEX checklist in order to be 
categorically excluded from further analysis and documentation in an EA 
or EIS.
    (b) Conditions. The following three conditions must be met for an 
action to be categorically excluded from further analysis in an EA or 
EIS.
    (1) The action has not been segmented (too narrowly defined or 
broken down into small parts in order minimize its potential effects 
and avoid a higher level of NEPA review) and its scope includes the 
consideration of connected actions and, when evaluating extraordinary 
circumstances, cumulative impacts.
    (2) No extraordinary circumstances described in paragraph (c) of 
this section exist, unless resolved through other regulatory means.
    (3) One categorical exclusion described in either section of 
Appendix A encompasses the proposed action.
    (c) Extraordinary circumstances. Any action that normally would be 
classified as a CATEX but could involve extraordinary circumstances 
will require appropriate environmental review documented in a Denali 
Commission CATEX checklist to determine if the CATEX classification is 
proper or if an EA or EIS should be prepared. Extraordinary 
circumstances to be considered include those likely to:
    (1) Have a reasonable likelihood of significant impacts on public 
health, public safety, or the environment;
    (2) Have effects on the environment that are likely to be highly 
controversial or involve unresolved conflicts concerning alternative 
uses of available resources;
    (3) Have possible effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or are scientifically 
controversial;
    (4) Establish a precedent for future action or represent a decision 
in principle about future actions with potentially significant 
environmental effects;
    (5) Relate to other actions with individually insignificant but 
cumulatively significant environmental effects;
    (6) Have a greater scope or size than is normal for the category of 
action;
    (7) Have the potential to degrade already existing poor 
environmental conditions or to initiate a degrading influence, 
activity, or effect in areas not already significantly modified from 
their natural condition;
    (8) Have a disproportionately high and adverse effect on low income 
or minority populations (see Executive Order 12898);
    (9) Limit access to and ceremonial use of Indian sacred sites on 
federal lands by Indian religious practitioners or adversely affect the 
physical integrity of such sacred sites (see Executive Order 13007);
    (10) Threaten a violation of a federal, tribal, state or local law 
or requirement imposed for the protection of the environment;
    (11) Have a reasonable likelihood of significant impact to 
subsistence activities; or
    (12) Have a reasonable likelihood of significant impacts on 
environmentally sensitive resources, such as:
    (i) Properties listed, or eligible for listing, in the National 
Register of Historic Places;
    (ii) Species listed, or proposed to be listed, on the List of 
Endangered or Threatened Species, or their habitat; or
    (iii) Natural resources and unique geographic characteristics such 
as historic or cultural resources; park, recreation or refuge lands; 
wilderness areas; wild or scenic rivers; national natural landmarks; 
sole or principal drinking water aquifers; prime farmlands; special 
aquatic sites (defined under Section 404 of the Clean Water Act); 
floodplains; national monuments; and other ecologically significant or 
critical areas.


Sec.  900.205  Environmental assessment.

    (a) An EA is required for all proposals, except those exempt or 
categorically excluded under this part, and those requiring or 
determined to require an EIS. EAs provide sufficient evidence and 
analysis to determine whether to prepare an EIS or a finding of no 
significant impact (FONSI).
    (b) In addition, an EA may be prepared on any action at any time in 
order to assist in planning and decision making, to aid in the 
Commission's compliance with NEPA when no EIS is necessary, or to 
facilitate EIS preparation.
    (c) EAs shall be prepared in accordance with subpart C of this part 
and shall contain analyses to support conclusions regarding 
environmental impacts. If a FONSI is proposed, it shall be prepared in 
accordance with Sec.  900.305.


Sec.  900.206  Environmental impact statement.

    An EIS is required when the project is determined to have a 
potentially significant impact on the human environment. EISs shall be 
prepared in accordance with subpart D of this part.


Sec.  900.207  Programmatic environmental reviews.

    (a) A programmatic NEPA review is used to assess the environmental 
impacts of a proposed action that is broad in reach, such as a program, 
plan, or policy (see 40 CFR 1502.4). Analyses of subsequent actions 
that fall within the program, plan, or policy may be tiered to the 
programmatic review, as described in 40 CFR 1502.20 and 1508.28.
    (b) Programmatic NEPA reviews may take the form of a programmatic 
EA or a programmatic EIS.
    (c) A programmatic EA shall meet all of the requirements for EAs in 
subpart C of this part, including those for content and public 
involvement. In order to adopt a programmatic EA prepared by another 
agency that did not provide the same public involvement opportunities 
as the Commission, the Commission shall provide notice of the 
availability of the programmatic EA and make it available for public 
comment consistent with Sec.  900.303(b) and (c) before adopting it.
    (d) A programmatic EIS shall meet all of the requirements for EISs 
in subpart D of this part and in 40 CFR parts 1500 through 1508.

Subpart C--Environmental Assessments


Sec.  900.301  Content.

    (a) An EA shall include brief discussions of the need for the 
proposal; of alternatives to the proposal as required by NEPA section 
102(2)(E); and of the environmental impacts of the proposal and 
alternatives. The EA shall also include a listing of agencies and 
persons consulted.
    (b) An EA may describe a broad range of alternatives and proposed 
mitigation measures to facilitate planning and decisionmaking.
    (c) The EA should also document compliance, to the extent possible, 
with all applicable environmental laws and Executive Orders, or provide 
reasonable assurance that those requirements can be met.
    (d) The level of detail and depth of impact analysis will normally 
be limited to the minimum needed to determine the significance of 
potential environmental effects.


Sec.  900.302  Adoption and incorporation by reference.

    (a) The Commission may adopt an environmental document prepared for 
a proposal before the Commission by another agency or an applicant when 
the EA, or a portion thereof, addresses the proposed action and meets 
the

[[Page 79298]]

standards for an adequate analysis under this part and relevant 
provisions of 40 CFR parts 1500 through 1508, provided that the 
Commission makes its own evaluation of the environmental issues and 
takes responsibility for the scope and content of the EA in accordance 
with 40 CFR 1506.5(b).
    (b) An environmental document or portion thereof prepared for a 
proposal before the Commission by another agency or applicant, may be 
incorporated by reference in accordance with 40 CFR 1502.21 and used in 
preparing an EA in accordance with 40 CFR 1501.4(e) and 1506.5(a), 
provided that the Commission makes its own evaluation of the 
environmental issues and takes responsibility for the scope and content 
of the EA in accordance with 40 CFR 1506.5(b).
    (c) The Commission may use an environmental document that, upon 
independent evaluation, is found not to comply with the requirements of 
an EA, if the document is incorporated by reference in accordance with 
40 CFR 1502.21 and is augmented as necessary to meet the requirements 
of an EA or an EIS.
    (d) If an EA is adopted or incorporated by reference under this 
section, the Commission shall prepare a notice of availability and 
proposed FONSI; or, if the EA results in the decision to do an EIS, the 
Commission shall prepare a notice of intent (NOI). In either case, the 
FONSI or NOI shall be prepared in accordance with this part and shall 
acknowledge the origin of the EA, and the Commission shall make its own 
evaluation of the environmental issues and take full responsibility for 
the scope and content of the EA in accordance with 40 CFR 1506.5(b).
    (e) The Commission may adopt a programmatic EA prepared by another 
agency consistent with Sec.  900.207(c).


Sec.  900.303  Public involvement.

    (a) Commission approval is required before an EA is made available 
to the public and the notice of availability is published.
    (b) The public shall be provided notice of the availability of EAs 
and draft FONSIs in accordance with 40 CFR 1506.6 and Sec.  900.108(a) 
by the Approving Official. The Approving Official is responsible for 
making the EA available for public inspection and will provide hard 
copies on request to the affected units of Alaska Native/American 
Indian tribal organizations and/or local government.
    (c) EAs and draft FONSIs will be available for public comment for 
not less than 15 calendar days but may be published for a longer period 
of time as determined by the Approving Official.
    (d) Final Commission action will be taken after public comments 
received on an EA or draft FONSI are reviewed and considered.


Sec.  900.304  Actions resulting from assessment.

    (a) Accepted without modification. A proposal may be accepted 
without modifications if the EA indicates that the proposal does not 
have significant environmental impacts and a FONSI is prepared in 
accordance with Sec.  900.305.
    (b) Accepted with modification. If an EA identifies potentially 
significant environmental impacts, the proposal may be modified to 
eliminate such impacts. Proposals so modified may be accepted if the 
proposed changes are evaluated in an EA and a FONSI is prepared in 
accordance with Sec.  900.305. In addition to the requirements set 
forth in Sec.  900.305, the FONSI shall list any mitigation measures 
necessary to make the recommended alternative environmentally 
acceptable and describe applicable monitoring and enforcement measures 
intended to ensure the implementation of the mitigation measures.
    (c) Rejected. A proposal should be rejected if significant and 
unavoidable adverse environmental impacts would still exist after 
modifications have been made to the proposal and an EIS is not 
prepared.
    (d) Prepare an EIS. A proposal shall require an EIS, prepared in 
accordance with subpart D to this part, if the EA indicates significant 
environmental impacts.


Sec.  900.305  Findings of no significant impact.

    (a) Definition. Finding of no significant impact (FONSI) means a 
document by the Commission briefly presenting the reasons why an 
action, not otherwise excluded as provided in Sec.  900.204, will not 
have a significant impact on the human environment and for which an EIS 
will not be prepared.
    (b) Applicant responsibility. The applicant shall assist the 
Commission with preparing the EA. The Commission remains responsible 
for compiling the public hearing summary or minutes, where applicable; 
and copies of any written comments received and responses thereto.
    (c) Content. A FONSI shall include the EA or a summary of it and 
shall note any other environmental documents related to it (40 CFR 
1501.7(a)(5)). If the assessment is included, the finding need not 
repeat any of the discussion in the assessment but may incorporate it 
by reference.
    (d) Publication. The Commission shall make the final FONSI 
available to the public on the Commission Web site.
    (e) Special circumstances. The FONSI notice of availability will be 
made available for public review (including State and areawide 
clearinghouses) for 30 days before the Commission makes its final 
determination whether to prepare an environmental impact statement and 
before the action may begin (40 CFR 1501.4(e)(2)) where:
    (1) The proposed action is, or is closely similar to, one which 
normally requires the preparation of an environmental impact statement 
under Sec.  900.405; or
    (2) The nature of the proposed action is one without precedent.


Sec.  900.306  Proposals normally requiring an EA.

    Proposals that normally require preparation of an EA include the 
following:
    (a) Initial field demonstration of a new technology; and
    (b) Field trials of a new product or new uses of an existing 
technology.

Subpart D--Environmental Impact Statements


Sec.  900.401  Notice of Intent and Scoping.

    (a) The Commission shall publish a NOI, as described in 40 CFR 
1508.22, in the Federal Register as soon as practicable after a 
decision is made to prepare an EIS, in accordance with 40 CFR 1501.7. 
If there will be a lengthy period of time between the Commission's 
decision to prepare an EIS and its actual preparation, the Commission 
may defer publication of the NOI until a reasonable time before 
preparing the EIS, provided that the Commission allows a reasonable 
opportunity for interested parties to participate in the EIS process. 
Through the NOI, the Commission shall invite comments and suggestions 
on the scope of the EIS.
    (b) Publication of the NOI in the Federal Register shall begin the 
public scoping process. The public scoping process for a Commission EIS 
shall allow a minimum of 30 days for the receipt of public comments.


Sec.  900.402  Preparation and filing of draft and final EISs.

    (a) General. Except for proposals for legislation as provided for 
in 40 CFR 1506.8, EISs shall be prepared in two stages and may be 
supplemented.
    (b) Format. The EIS format recommended by 40 CFR 1502.10 shall be 
used unless a determination is made on a particular project that there 
is a compelling reason to do otherwise. In

[[Page 79299]]

such a case, the EIS format must meet the minimum requirements 
prescribed in 40 CFR 1502.10, as further described in 40 CFR 1502.11 
through 1502.18.
    (c) Applicant role. The draft or final EIS shall be prepared by the 
Commission with assistance from the applicant under appropriate 
guidance and direction from the Approving Official.
    (d) Third-party consultants. A third-party consultant selected by 
the Commission or in cooperation with a cooperating agency may prepare 
the draft or final EIS.
    (e) Commission responsibility. The Commission shall provide 
guidance, participate in the preparation, independently evaluate, and 
take responsibility for the draft or final EIS.
    (f) Filing. After a draft or final EIS has been prepared, the 
Commission shall file the draft or final EIS with the Environmental 
Protection Agency (EPA). The EPA will publish a notice of availability 
in accordance with 40 CFR 1506.9 and 1506.10.
    (g) Draft to final EIS. When a final EIS does not require 
substantial changes from the draft EIS, the Commission may document 
required changes in errata sheets, insertion pages, and revised 
sections. The Commission will then circulate such changes together with 
comments on the draft EIS, responses to comments, and other appropriate 
information as its final EIS. The Commission will not circulate the 
draft EIS again; however, the Commission will provide the draft EIS if 
requested.
    (h) Record of decision. A record of decision (ROD) will be prepared 
in accordance with 40 CFR 1505.2.


Sec.  900.403  Supplemental EIS.

    (a) Supplements to either draft or final EISs shall be prepared, as 
prescribed in 40 CFR 1502.9, when substantial changes are proposed in a 
project that are relevant to environmental concerns; or when there are 
significant new circumstances or information relevant to environmental 
concerns and bearing on the proposed action or its impacts.
    (b) Where action remains to be taken and the EIS is more than a 
year old, the Commission will review the EIS to determine whether it is 
adequate or requires supplementation.
    (c) The Commission shall prepare, circulate and file a supplement 
to an EIS in the same fashion (exclusive of scoping) as a draft and 
final EIS. In addition, the supplement and accompanying administrative 
record shall be included in the administrative record for the proposal. 
When an applicant is involved, the applicant shall, under the direction 
of the approving official, provide assistance.
    (d) An NOI to prepare a supplement to a final EIS will be published 
in those cases where a ROD has already been issued.


Sec.  900.404  Adoption.

    (a) The Commission may adopt a draft or final EIS or portion 
thereof (see 40 CFR 1506.3), including a programmatic EIS, prepared by 
another agency.
    (b) If the actions covered by the original EIS and the proposal are 
substantially the same, the Commission shall recirculate it as a final 
statement. Otherwise, the Commission shall treat the statement as a 
draft and recirculate it except as provided in paragraph (c) of this 
section.
    (c) Where the Commission is a cooperating agency, it may adopt the 
EIS of the lead agency without recirculating it when, after an 
independent review of the EIS, the Commission concludes that its 
comments and suggestions have been satisfied.
    (d) When the Commission adopts an EIS which is not final within the 
agency that prepared it, or when the action it assesses is the subject 
of a referral under 40 CFR part 1504, or when the EIS's adequacy is the 
subject of a judicial action which is not final, the Commission shall 
so specify.


Sec.  900.405  Proposals normally requiring an EIS.

    The Approving Official shall assure that an EIS will be prepared 
and issued for proposals when it is determined that any of the 
following conditions exist:
    (a) The proposal may significantly affect the pattern and type of 
land use (industrial, commercial, agricultural, recreational, 
residential) or the growth and distribution of population;
    (b) The use or effects of any structure or facility constructed or 
operated under the proposal may conflict with federal, tribal, state, 
regional or local land use plans or policies;
    (c) The proposal may have significant adverse effects on special 
aquatic sites (defined under Section 404 of the Clean Water Act), 
including indirect and cumulative effects, or any major part of a 
structure or facility constructed or operated under the proposal may be 
located in special aquatic sites;
    (d) The proposal may likely adversely affect species protected 
under the Endangered Species Act or their habitats, such as when a 
structure or a facility constructed or operated under the proposal may 
be located in the habitat;
    (e) Implementation of the proposal may directly cause or induce 
changes that significantly:
    (1) Displace population;
    (2) Alter the character of existing residential areas; or
    (3) Adversely affect a floodplain.

Appendix A to Part 900--Categorical Exclusions

A. General Categorical Exclusions

    Actions consistent with any of the following categories are, in 
the absence of extraordinary circumstances, categorically excluded 
from further analysis in an EA or EIS:
    A1. Routine administrative and management activities including, 
but not limited to, those activities related to budgeting, finance, 
personnel actions, procurement activities, compliance with 
applicable executive orders and procedures for sustainable or 
``greened'' procurement, retaining legal counsel, public affairs 
activities (e.g., issuing press releases, newsletters and notices of 
funding availability), internal and external program evaluation and 
monitoring (e.g., site visits), database development and 
maintenance, and computer systems administration.
    A2. Routine activities that the Commission does to support its 
program partners and stakeholders, such as serving on task forces, 
ad hoc committees or representing Commission interests in other 
forums.
    A3. Approving and issuing grants for administrative overhead 
support.
    A4. Approving and issuing grants for social services, education 
and training programs, including but not limited to support for Head 
Start, senior citizen programs, drug treatment programs, and funding 
internships, except for projects involving construction, renovation, 
or changes in land use.
    A5. Approving and issuing grants for facility planning and 
design.
    A6. Nondestructive data collection, inventory, study, research, 
and monitoring activities (e.g., field, aerial and satellite 
surveying and mapping).
    A7. Research, planning grants and technical assistance projects 
that are not reasonably expected to commit the federal government to 
a course of action, to result in legislative proposals, or to result 
in direct development.
    A8. Acquisition and installation of equipment including, but not 
limited to, EMS, emergency and non-expendable medical equipment 
(e.g., digital imaging devices and dental equipment), and 
communications equipment (e.g., computer upgrades).

B. Program Categorical Exclusions

    Actions consistent with any of the following categories are, in 
the absence of extraordinary circumstances, categorically excluded 
from further analysis and documentation in an EA or EIS upon 
completion of the Denali Commission CATEX checklist:
    B1. Upgrade, repair, maintenance, replacement, or minor 
renovations and additions to buildings, roads, harbors and

[[Page 79300]]

other maritime facilities, grounds, equipment, and other facilities, 
including but not limited to, roof replacement, foundation repair, 
ADA access ramp and door improvements, weatherization and energy 
efficiency related improvements, HVAC renovations, painting, floor 
system replacement, repaving parking lots and ground maintenance, 
that do not result in a change in the functional use of the real 
property.
    B2. Engineering studies and investigations that do not 
permanently change the environment.
    B3. Construction or lease of new infrastructure including, but 
not limited to, health care facilities, community buildings, 
housing, and bulk fuel storage and power generation plants, where 
such lease or construction:
    (a) Is at the site of existing infrastructure and capacity is 
not substantially increased; or
    (b) Is for infrastructure of less than 12,000 square feet of 
useable space when less than two aces of surface land area are 
involved at a new site.
    B4. Construction or modification of electric power stations or 
interconnection facilities (including, but not limited to, switching 
stations and support facilities).
    B5. Construction of electric powerlines approximately ten miles 
in length or less, or approximately 20 miles in length or less 
within previously disturbed or developed powerline or pipeline 
rights-of-way.
    B6. Upgrading or rebuilding approximately twenty miles in length 
or less of existing electric powerlines, which may involve minor 
relocations of small segments or the powerlines.
    B7. Demolition, disposal, or improvements involving buildings or 
structures when done in accordance with applicable regulations, 
including those regulations applying to removal of asbestos, 
polychlorinated biphenyls (PCBs), and other hazardous materials.
    B8. Project or program actions for which applicable 
environmental documentation has been prepared previously, by either 
the Commission or another federal agency, and environmental 
circumstances have not subsequently changed.

     Dated: December 10, 2015.
Joel Neimeyer,
Federal Co-Chair.
[FR Doc. 2015-31701 Filed 12-18-15; 8:45 am]
BILLING CODE P