National Environmental Policy Act Regulations., 24570-24582 [2017-10940]

Download as PDF 24570 Proposed Rules Federal Register Vol. 82, No. 102 Tuesday, May 30, 2017 SubmissionGuidelines.html?sgpage=3. These regulations lay out the process federal agencies and NCPC on behalf of non-federal agencies must follow to ensure NEPA compliance. While the subject regulations are critical to the Commission’s ability to carry out its review authorities, they have not been updated since 2004. As such, NCPC NATIONAL CAPITAL PLANNING proposes revisions to its Environmental COMMISSION Policies and Procedures to simplify the regulations and streamline the agency’s 1 CFR Chapter VI NEPA process. In this proposal, NCPC is National Environmental Policy Act also proposing to establish a new Regulations. chapter (chapter VI) in title 1 of the Code of Federal Regulations (CFR) to AGENCY: National Capital Planning promote orderly codification. As the Commission NCPC updates its regulations currently ACTION: Proposed rule; public meetings. found in 1 CFR parts 455, 456 and 457 SUMMARY: The National Capital Planning it will move them to its new chapter VI in title 1. Commission (NCPC or Commission) proposes to adopt new regulations Key Changes Incorporated Into NCPC’s governing NCPC’s implementation of Proposed Environmental Policies and the National Environmental Policy Act Procedures (NEPA) and regulations promulgated by NCPC’s current NEPA procedures the Council on Environmental Quality were adopted in 2004 and generally (CEQ). Federal agencies and NCPC on remain appropriate and effective. behalf of non-federal agencies must However certain portions of the existing comply with the requirements of NEPA policies and procedures require revision and CEQ regulations for projects submitted to the Commission for review to simplify, streamline, and improve the effectiveness of NCPC’s process for and approval. complying with NEPA. DATES: Submit comments on or before One of the most significant changes July 14, 2017. Public meetings to incorporated into the proposed discuss the proposed Policies and Environmental Policies and Procedures Procedures will be held on Tuesday, (Policies and Procedures) is the June 13, 2017 from 6:00 p.m.–7:30 p.m. elimination of procedures for complying and Thursday, June 15, 2017 from 9:30 with Section 106 of the National a.m.–11:00 a.m. Both meetings will be Historic Preservation Act (NHPA). In held at the National Capital Planning 2004, when it adopted its current Commission, 401 9th Street NW., Suite regulations, NCPC opted to issue 500, Washington, DC 20004. combined NEPA and the NHPA ADDRESSES: You may submit written regulations to ensure coordinated comments on the proposed Policies and implementation of both procedures. Procedures by either of the methods However, regulations promulgated by listed below. the ACHP do not require agencies to 1. U.S. mail, courier, or hand delivery: adopt agency specific processes and Anne R. Schuyler, General Counsel/ procedures. Instead ACHP regulations National Capital Planning Commission, establish the processes and procedures 401 9th Street NW., Suite 500, all federal agencies must follow. This Washington, DC 20004. resulted in the inclusion of duplicative 2. Electronically: nepa@ncpc.gov. information in NCPC’s current policies FOR FURTHER INFORMATION CONTACT: and procedures. While this information Anne R. Schuyler, General Counsel at proved helpful, it diverted attention 202–482–7223 or nepa@ncpc.gov. away from NCPC’s agency specific NEPA policies and procedures SUPPLEMENTARY INFORMATION: The mandated by CEQ. Accordingly, the current regulation are published on the proposed Policies and Procedures delete NCPC Web site at the following detailed references to Section 106 location: https://www.ncpc.gov/ncpc/ consultation procedures. They do retain Main(T2)/ProjectReview(Tr2)/ references to coordination between ProjectReview(Tr3)/ sradovich on DSK3GMQ082PROD with PROPOSALS This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 NEPA and NHPA and consideration of historic resources in the NEPA process. To clarify roles and responsibilities, the proposed Policies and Procedures distinguish between federal agency applicants and non-federal agency applicants. Federal agency applicants include cabinet level departments and executive agencies such as the U.S. General Services Administration (GSA). Non-federal agency applicants include, without limitation, the Smithsonian Institution, the John F. Kennedy Center for the Performing Arts, the National Gallery of Art, the US Institute of Peace, the Government of the District of Columbia, the Maryland National Capital Park and Planning Commission (MNCPPC) and private parties implementing projects on federal land. NCPC’s jurisdiction extends to nonfederal agency applicants when they undertake projects on federally-owned land. Under the proposed Policies and Procedures, NCPC serves as lead agency when the applicant is a non-federal agency. While this deviates from current practice, the proposal ensures NCPC a prominent role in the NEPA process and the ability to ensure consideration of its views. The proposed Policies and Procedures also alter the timing and sequencing of an applicant’s submission of NEPA documentation for applications governed by the National Capital Planning Act and the Commemorative Works Act. Under the current regulations, an applicant must complete the NEPA process at the time of preliminary review. Under the proposed regulations, an applicant must complete its NEPA process at the time of final review. This revised approach allows the Commission an opportunity to provide input on a project when it is still in the developmental phase. It also provides a NEPA sequencing consistent with federal agency project development schedules. This eliminates the pressure on federal agency applicants to expedite its NEPA process to meet NCPC’s current sequencing policies. NCPC also proposes several changes to its list of projects eligible for application of a CATEX. NCPC proposes to eliminate three existing CATEXs because they are based on old, antiquated authorities which have little to no relationship to NCPC’s present day review roles. NCPC proposes to add four E:\FR\FM\30MYP1.SGM 30MYP1 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules sradovich on DSK3GMQ082PROD with PROPOSALS new CATEXs and to increase the number of extraordinary circumstances with the potential to negate application of CATEXs. The new CATEXs and extraordinary circumstances reflect matters addressed in federal, state and local laws and regulations and Executive Orders applicable to projects that come before NCPC. Section by Section Analysis of NCPC’s Proposed Environmental Policies and Procedures Subpart A—General. This subpart contains three subsections addressing purpose, policy and definitions. § 601.1 Purpose. This section presents a clear, succinct statement of purpose. § 601.2 Policies. This section states NCPC’s policies implementing NEPA. The content is similar to that of the existing policies and procedures, but the proposed Policies and Procedures consolidate all policies into one section. The existing Policies and Procedures disperse NCPC’s NEPA policies throughout multiple sections. § 601.3 Definitions. This section defines terms frequently used in the document. It deletes definitions from the existing regulations that are infrequently or no longer used in the proposed regulations. Subpart B—Lead and Cooperating Agencies. This subpart assigns lead and cooperating agency status and states the obligations required of an applicant depending on their assigned status. § 601.4 Designation of Lead Agency. This section confers lead agency status on federal agency applicants and upon NCPC when the applicant is a nonfederal agency. By definition, a federal agency means the executive agencies defined in 5 U.S.C. 105. A non-federal agency applicant means those applicants outside the statutory definition of federal agency that undertake projects on federal land and include, without limitation, the Smithsonian Institution, the John F. Kennedy Center for the Performing Arts, the National Gallery of Art, the U.S. Institute of Peace, the Government of the District of Columbia, MNCPPC, and private parties undertaking development on federal land. § 601.5 Lead Agency obligations. This section lists the general obligations of a lead agency. § 601.6 Resolving disputes over Lead Agency status. The section includes a dispute resolution provision for circumstances when there is a disagreement over which agency serves as the lead. § 601.7 Cooperating Agencies. This section lists the obligations of NCPC VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 when it serves as a cooperating agency and requires non-federal agencies to comply with the same obligations when NCPC serves as lead agency. Subpart C—NEPA Submission Schedules. This subpart establishes the NEPA submission schedule for applications reviewed by the Commission pursuant to the Planning Act and the Commemorative Works Act. § 601.8 NEPA Submission schedule for applications governed by the National Capital Planning Act. This section establishes a revised NEPA submission schedule as follows: Initiation of scoping at the time of concept review; issuance of a draft environmental document (EA or EIS) at the time of preliminary review; and issuance of a final environmental document and final determination (FONSI or ROD) at the time of final review. The section also addresses the NEPA process to be undertaken by NCPC as the lead agency when emergency circumstances exist and application of a CATEX is not possible. § 601.9 NEPA submission schedule for applications governed by the Commemorative Works Act. This section establishes a new NEPA submission schedule as follows: Commencement of the NEPA process at the time of concept site and concept design review; issuance of a draft environmental document for public review at the time of preliminary approval of a site and design; and issuance of a final environmental document and a final determination (FONSI or ROD) at the time of final site and design review. Subpart D—Initiating the NEPA Process. This subpart describes the characteristics of Commission actions eligible for a CATX, lists the extraordinary circumstances that may negate the application of a CATEX, and lists NCPC’s CATEXs. § 601.10 Characteristics of Commission actions eligible for a Categorical Exclusion. This section lists four types of actions the generally qualify for application of a CATEX: § 601.11 Extraordinary Circumstances. This section list ten extraordinary circumstances that may negate NCPC’s application of a CATEX. Current regulations specify only five extraordinary circumstances. § 601.12 National Capital Planning Commission Categorical Exclusions. This section lists ten categorical exclusions available for use by NCPC. It includes a few new, but minor types of projects eligible for categorical exclusion and removes some existing CATEX based on old, antiquated authorities. PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 24571 Subpart E—Environmental Assessments. This subpart identifies the characteristics of Commission actions eligible for an EA; the specific types of Commission actions eligible for an EA; the contents, process for preparing, and process for adopting an EA; the process for closing out the EA process; and the requirements for determining when a supplemental EA should be prepared. § 601.13 Characteristics of Commission actions eligible for and Environmental Assessment. This section lists four characteristics that generally render a Commission action eligible for an EA. § 601.14 Commission actions generally eligible for an Environmental Assessment. This section lists five specific actions of the Commission which comply with the criteria listed in § 601.13 above and, therefore, qualify for preparation of an EA. § 601.15 Preparing an Environmental Assessment. This section provides general guidance on the contents of an EA and the entities to be involved in the preparation of the document. The section also authorizes NCPC’s Executive Director to undertake a public scoping process for an EA if he/ she determines it to be appropriate, outlines the public scoping process, and authorizes NCPC in its discretion to solicit public comment on a draft EA. § 601.16 Finding of No Significant Impact. This section directs NCPC as the lead agency to prepare a FONSI, if warranted, at the conclusion of the EA process. It also provides NCPC the option of either co-signing the lead agency’s FONSI or preparing its own FONSI when NCPC serves as a cooperating agency. The section also specifies remedies the Commission can pursue when a lead agency’s EA fails to support a FONSI. § 601.17 Supplemental Environmental Assessments. This section establishes when a supplemental EA may be warranted. Subpart F—Environmental Impact Statements. This subpart establishes the requirement for and timing of an EIS; links the requirement for an EIS to the context and intensity of impacts; requires use of techniques that minimize the length of an EIS; authorizes use of programmatic EISs and tiering; lists the contents of an EIS; sets forth the process for preparing an EIS; addresses preparation and issuance of a Final EIS; and addresses the preparation, and issuance of a ROD. § 601.18 Requirement and timing of an Environmental Impact Statement. This section requires NCPC preparation of an EIS on behalf on non-federal agency applicants, prior to the E:\FR\FM\30MYP1.SGM 30MYP1 sradovich on DSK3GMQ082PROD with PROPOSALS 24572 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules Commission’s approval of a major federal action that has the potential to significantly affect the quality of the human environment. § 601.19 Context, intensity and significance of impacts. This section requires the determination on whether an EIS is necessary and whether an impact is significant based on the context and intensity of a project’s impacts. The section discusses the meaning of context and intensity and lists the characteristics that render projects significant. § 601.20 Streamlining Environmental Impact Statements. This section requires NCPC to minimize the length of an EIS when NCPC serves as the lead agency and lists techniques that can achieve this result. § 601.21 Programmatic Environmental Impact Statements and tiering. This section authorizes use of a PEA and PEIS to assess the impacts of proposed plans and projects when there is uncertainty regarding the timing, the location, and the environmental impacts of subsequent implementing actions. When NCPC proceeds with a specific action, it authorizes the use of tiering or working from where the PEA or PEIS left off to define specific issues associated with the proposed action. § 601.22 Contents of an Environmental Impact Statement. This section enumerates the specific sections and contents that must be included in an EIS when NCPC is lead agency. § 601.23 The Environmental Impact Statement process. This section specifies the parties that must be included in the draft EIS preparation process, the process to follow for determining the scope of an EIS, and the process for obtaining public comment when NCPC is lead agency. § 601.24 Final Environmental Impact Statement. This section provides for the preparation of a final EIS responsive to public comments and provides for a forty five-day Commission-sponsored review period of the final EIS before the Commission takes action when NCPC is lead agency. § 601.25 Record of Decision. This section requires the preparation of a ROD stating the Commission’s decision and any conservation or mitigation measures required by the Commission when NCPC is lead agency. It also lists the required contents of a ROD. This section enables NCPC to co-sign the ROD of the lead agency if NCPC serves as a cooperating agency and concurs with the applicant’s ROD. § 601.26 Supplemental Environmental Impact Statement. This section specifies a supplemental EIS may be warranted if the original VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 document is more than five years old and changed project specifications or new circumstances or information exist. § 601.27 Legislative Environmental Impact Statement. This sections requires NCPC to prepare an EIS when initiating the submission of draft legislation to Congress. Subpart G—Dispute Resolution. This subpart sets forth a mechanism for dispute resolution. § 601.28 Dispute resolution. Unless a specific dispute resolution is invoked elsewhere in the Policies and Procedures, this section requires disputes arising under the Policies and Procedures to be resolved through interagency negotiations starting at the working levels and rising to the level necessary to resolve the dispute. If disputes cannot besettled through interagency negotiations, the parties are required to engage in mediation. Compliance With Laws and Executive Orders 1. Executive Orders 12866 and 13563 By Memorandum dated October 12, 1993 from Sally Katzen, Administrator, Office of Information and Regulatory Affairs (OIRA) to Heads of Executive Departments and Agencies, and Independent Agencies, OMB rendered the NCPC exempt from the requirements of Executive Order 12866 (See, Appendix A of cited Memorandum). Nonetheless, NCPC endeavors to adhere to the provisions of Executive Orders and developed this proposed rule in a manner consistent with the requirements of Executive Order 13563. NCPC worked closely with CEQ on the derivation of the proposed Policies and Procedures and intends to work with the land-holding agencies and certain non-federal agencies impacted by these during the public comment period. 2. Executive Order 13771 By virtue of its exemption from the requirements of EO 12866, NCPC is exemption from this executive order. NCPC confirmed this fact with OIRA. 3. Regulatory Flexibility Act As required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the NCPC certifies that the proposed rule will not have a significant economic effect on a substantialnumber of small entities. 4. Small Business Regulatory Enforcement Fairness Act This is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It does not have an annual effect on the economy of $100 million or more; will not cause PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 a major increase in costs for individuals, various levels of governments or various regions; and does not have a significant adverse effect on completion, employment, investment, productivity, innovation or the competitiveness of US enterprises with foreign enterprises. 5. Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) A statement regarding the Unfunded Mandates Reform Act is not required. The proposed rule neither imposes an unfunded mandate of more than $100 million per year nor imposes a significant or unique effect on State, local or tribal governments or the private sector. 6. Federalism (Executive Order 13132) In accordance with Executive Order 13132, the proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The proposed rule does not substantially and directly affect the relationship between the Federal and state governments. 7. Civil Justice Reform (Executive Order 12988) The General Counsel of NCPC has determined that the proposed rule does not unduly burden the judicial system and meets the requirements of Executive Order 12988 3(a) and 3(b)(2). 8. Paperwork Reduction Act The proposed rule does not contain information collection requirements, and it does not require a submission to the Office of Management and Budget under the Paperwork Reduction Act. 9. National Environmental Policy Act The proposed rule is of an administrative nature, and its adoption does not constitute a major federal action significantly affecting the quality of the human environment. NCPC’s adoption of the proposed rule will have minimal or no effect on the environment; impose no significant change to existing environmental conditions; and will have no cumulative environmental impacts. 10. Clarity of the Regulation Executive Order 12866, Executive Order 12988, and the Presidential Memorandum of June 1, 1998 requires the NCPC to write all rules in plain language. NCPC maintains the proposed rule meets this requirement. Those individuals reviewing the proposed rule who believe otherwise should submit specific comments to the addresses noted above recommending revised language for those provision or portions E:\FR\FM\30MYP1.SGM 30MYP1 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules thereof where they believe compliance is lacking. 11. Public Availability of Comments Be advised that personal information such as name, address, phone number electronic address, or other identifying personal information contained in a comment may be made publically available. Individuals may ask NCPC to withhold the personal information in their comment, but there is no guarantee the agency can do so. List of Subjects in 1 CFR Part 601 Environmental Policies and Procedures. For the reasons stated in the preamble, the National Capital Planning Commission proposes to establish 1 CFR chapter VI, consisting of part 601, to read as follows: Subpart F—Environmental Impact Statements 601.18 Requirement for and timing of an Environmental Impact Statement. 601.19 Context, intensity, and significance of impacts. 601.20 Streamlining Environmental Impact Statements. 601.21 Programmatic Environmental Impact Statements and tiering. 601.22 Contents of an Environmental Impact Statement. 601.23 The Environmental Impact Statement process. 601.24 Final Environmental Impact Statement. 601.25 Record of Decision. 601.26 Supplemental Environmental Impact Statement. 601.27 Legislative Environmental Impact Statement. Subpart G—Dispute Resolution 601.28 Dispute resolution. 601.29 [Reserved] Authority: 40 CFR 1507.3. CHAPTER VI—NATIONAL CAPITAL PLANNING COMMISSION Subpart A—General PART 601—ENVIRONMENTAL POLICIES AND PROCEDURES § 601.1 Subpart A—General Sec. 601.1 601.2 601.3 Purpose. Policies. Definitions. Subpart B—Lead and Cooperating Agencies 601.4 Designation of Lead Agency. 601.5 Lead Agency obligations. 601.6 Resolving disputes over Lead Agency status. 601.7 Cooperating Agencies. Subpart C—NEPA Submission Schedules 601.8 NEPA submission schedule for applications governed by the National Capital Planning Act. 601.9 NEPA submission schedule for applications governed by the Commemorative Works Act. Subpart D—Initiating the NEPA Process 601.10 Characteristics of Commission actions eligible for a Categorical Exclusion. 601.11 Extraordinary Circumstances. 601.12 National Capital Planning Commission Categorical Exclusions. sradovich on DSK3GMQ082PROD with PROPOSALS Subpart E—Environmental Assessments 601.13 Characteristics of Commission actions eligible for an Environmental Assessment. 601.14 Commission actions generally eligible for an Environmental Assessment. 601.15 Process for preparing an Environmental Assessment. 601.16 Finding of No Significant Impact. 601.17 Supplemental Environmental Assessments. VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 Purpose. This part establishes rules that supplement the Council on Environmental Quality’s (CEQ) National Environmental Policy Act (NEPA) regulations that the National Capital Planning Commission (NCPC or Commission) and its applicants shall follow to ensure: (a) Compliance with NEPA, as amended (42 U.S.C. 4321 et seq.) and CEQ regulations for implementing the procedural provisions of NEPA (40 CFR parts 1501through 1508). (b) Compliance with other laws, regulations, and Executive Orders identified by NCPC as applicable to a particular application. § 601.2 Policies. Consistent with 40 CFR 1500.1 and 1500.2, it shall be the policy of the NCPC to: (a) Comply with the procedures and policies of NEPA and other related laws, regulations, and orders applicable to Commission actions. (b) Provide applicants sufficient guidance to ensure plans and projects comply with the rules of this part and other laws, regulations, and orders applicable to Commission actions. (c) Integrate NEPA into its decisionmaking process at the earliest possible stage. (d) Integrate the requirements of NEPA and other planning and environmental reviews required by law including, without limitation, the National Historic Preservation Act, 54U.S.C. 306108 (NHPA), to ensure all such procedures run concurrently. PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 24573 (e) Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects on the quality of the human environment in the National Capital Region. (f) Use all practicable means to protect, restore, and enhance the quality of the human environment including built and socioeconomic environments and historic properties within the National Capital Region. (g) Streamline the NEPA process and Environmental Impact Statements (EIS) to the maximum extent possible. (h) Use the NEPA process to foster meaningful public involvement in NCPC decisions. § 601.3 Definitions. For purposes of this part, the following definitions shall apply: Administrative Record means a compilation of all materials (written and electronic) that were before the agency at the time it made its final decision. An Administrative Record documents an agency’s decision-making process and the basis for the decision. Categorical Exclusion or CATEX means, as defined by 40 CFR 1508.4, a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency (NCPC) in implementation of CEQ’s regulations and for which, therefore, neither an Environmental Assessment (EA) nor an EIS is required. Central Area means the geographic area in the District of Columbia comprised of the Shaw School and Downtown Urban Renewal Areas or such other area as the Districtof Columbia and NCPC shall subsequently jointly determine. Chairman means the Chairman of the National Capital Planning Commission appointed by the President, pursuant to 40 U.S.C. 8711(c). Commemorative Works Act or CWA means the federal law codified at 40 U.S.C. 8901 et seq. that sets forth the requirements for the location and development of new memorials and monuments on land under the jurisdiction of the National Park Service (NPS) or the General Services Administration (GSA) in the District of Columbia and its environs. Commission means the National Capital Planning Commission created by 40 U.S.C. 8711. Comprehensive Plan means The Comprehensive Plan for the National Capital: Federal Elements prepared and E:\FR\FM\30MYP1.SGM 30MYP1 sradovich on DSK3GMQ082PROD with PROPOSALS 24574 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules adopted by the Commission pursuant to 40 U.S.C. 8721(a). Cooperating Agency means, as defined in 40 CFR 1508.5, any Federal Agency other than a Lead Agency and a Non-federal Agency that has jurisdiction by law or special expertise with respect to a proposal (or reasonable alternative) for legislation or other major action significantly affecting the quality of the human environment; a state or local agency of similar qualifications; or when the effects are on a reservation, an Indian Tribe when agreed to by the Lead Agency. Cumulative Impact means, as defined in 40 CFR 1508.7, the impact on the environment that results from the incremental impact of an action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor, but collectively significant, actions taking place over a period of time. Emergency Circumstances means an unexpected, serious occurrence or situation requiring immediate attention to protect the lives and safety of the public and protect property and ecological resources and functions from imminent harm. Environmental Assessment or EA means, as defined in 40 CFR 1508.9, a concise document for which a federal agency is responsible that serves to briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or FONSI; aid an agency’s compliance with NEPA when no EIS is necessary; facilitate preparation of an EIS when one is necessary; and includes a brief discussion of the need for the proposal, alternatives as required by section 102(2)(E) of NEPA, the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. Environmental Impact Statement or EIS means, as defined in 40 CFR 1508.11, a detailed written statement as required by 42 U.S.C. 4332(2)(C). Environs means the territory surrounding the District of Columbia included in the National Capital Region pursuant to 40 U.S.C. 8702(a)(1). Executive Director means the Executive Director employed by the National Capital Planning Commission pursuant to 40 U.S.C. 8711(d). Executive Director’s Recommendation or EDR means a concise written report and recommendation prepared by NCPC staff under the direction of NCPC’s Executive Director regarding a proposed VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 action and transmitted to the Commission for its consideration. Extraordinary Circumstances means special circumstances that when present may negate an agency’s ability to categorically exclude a project and may require an agency to undertake further NEPA review. Federal Agency means the executive agencies of the federal government as defined in 5 U.S.C. 105. Finding of No Significant Impact or FONSI means, as defined at 40 CFR 1508.13, a document prepared by NCPC or a Federal Agency applicant that briefly presents the reasons why an action, not otherwise excluded (40 CFR 1508.4), will not have a significant effect on the human environment and for which an EIS will not be prepared. It shall include the EA or a summary of it and shall note any other EAs or EISs related to it (40 CFR 1501.7(a)(5)). If the EA is included in the FONSI, the FONSI need not repeat any of the discussion in the EA but may be incorporated by reference. Lead Agency means, as defined in 40 CFR 1508.16, the agency or agencies preparing or having primary responsibility for preparing an EA or an EIS. Memorandum of Understanding or MOU means for purposes of implementing NEPA, a written agreement entered into between a Lead, Co-lead and a Cooperating Agency to facilitate implementation of NEPA and preparation of the requisite environmental documentation. A MOU can be written at a programmatic level to apply to all projects involving NCPC and a Federal or Non-Federal Agency applicant or on a project-by-project basis. A MOU as defined here shall be in addition to and not preclude MOUs prepared by NCPC and Federal agencies for other purposes. Mitigation means, as defined in 40 CFR 1508.20, avoiding an impact altogether by not taking a certain action or parts of an action; minimizing impacts by limiting the degree or magnitude of the action and its implementation; rectifying the impact by repairing, rehabilitating, or restoring the affected environment; reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and compensating for the impact by replacing or providing substitute resources or environments. Monumental Core means the general area encompassed by the Capitol grounds, the Mall, the Washington Monument grounds, the White House grounds, the Ellipse, West Potomac Park, East Potomac Park, the Southwest PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 Federal Center, the Federal Triangle area, President’s Park, the Northwest Rectangle, Arlington Cemetery and the Pentagon area, and Joint Base MyerHenderson Hall. National Capital Planning Act means the July 1952 legislative enactment, codified at 40 U.S.C. 8701 et seq., that created the present day National Capital Planning Commission and conferred authority upon it to serve as the planning and zoning authority for the federal government. National Capital Region means, as defined in 40 U.S.C. 8702(2), the District of Columbia; Montgomery and Prince Georges Counties in Maryland; Arlington, Fairfax, Loudon, and Prince William Counties in Virginia; and all cities in Maryland or Virginia in the geographic area bounded by the outer boundaries of the combined area of the counties listed. NEPA Document or Document means a Categorical Exclusion determination, an EA, or an EIS. Non-federal Agency means those applicants outside the definition of Federal Agency that prepare plans for or undertake projects on federal land and include, without limitation, the Smithsonian Institution, the John F. Kennedy Center for the Performing Arts, the National Gallery of Art, the United States Institute of Peace, the Government of the District of Columbia, the Maryland National Capital Parks and Planning Commission; and private parties undertaking development on federal land. Notice of Availability or NOA means a public notice or other means of public communication that announces the availability of an EA or an EIS for public review. Notice of Intent or NOI means, as defined in 40 CFR 1508.22, a notice published in the Federal Register that an EIS will be prepared and considered. The notice shall briefly describe the proposed action and possible alternatives; describe the agency’s proposed Public Scoping process including whether, when, and where any Public Scoping meeting will be held; and state the name and address of a person within the agency who can answer questions about the proposed action and the EIS. For purposes of NCPC implementation of NEPA, NCPC may determine, at its sole discretion, to publish an NOI that an EA will be prepared and considered. Programmatic NEPA Review means a broad or high level NEPA review that assesses the environmental impacts of proposed policies, plans or programs, or projects for which subsequent project or site-specific NEPA analysis will be E:\FR\FM\30MYP1.SGM 30MYP1 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules conducted. A Programmatic NEPA Review utilizes a tiering approach. Record of Decision or ROD means a concise public record of an agency’s decision in cases requiring an EIS that is prepared in accordance with 40 CFR 1505.2. Scope means, as defined in 40 U.S.C. 1508.25, the range of actions (connected, cumulative and similar); alternatives (no action, other reasonable courses of action; and mitigation measures not included in the proposed action); and impacts (direct, indirect and cumulative) considered in an EIS or an EA. The process of defining and determining the scope of issues to be addressed in an EIS or EA with public involvement shall be referred to as Public Scoping. Internal scoping activities shall be referred to by the word scoping without capitalization. Submission Guidelines means the formally-adopted document which describes the application process and application requirements for projects requiring review by the Commission. Tiering means, as defined in 40 CFR 1508.28, an approach where Federal Agency applicants, NCPC on behalf of Non-federal Agency applicants, or NCPC for its own projects initially consider the broad, general impacts of a proposed program, plan, policy, or large scale project—or at the early stage of a phased proposal—and then conduct subsequent narrower, decision focused reviews. Subpart B—Lead and Cooperating Agencies sradovich on DSK3GMQ082PROD with PROPOSALS § 601.4 Designation of Lead Agency. (a) A Federal Agency applicant shall serve as the Lead Agency and prepare an EA or an EIS for: (1) An application that requires Commission approval; and (2) An application submitted for action on a master plan that includes future projects that require Commission approval; provided that: (i) The applicant intends to submit individual projects covered by the master plan to the Commission within five years of the date of Commission action on the master plan; and (ii) The applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for specific projects referenced in the master plan. (b) At the sole discretion of the Executive Director, and unless determined otherwise, NCPC shall serve as Lead Agency and prepare and EA or and EIS for: (1) An application submitted by a Non-federal Agency that requires Commission approval; VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 (2) An application submitted by a Non-federal Agency for action on a master plan that includes future projects that require Commission approval; provided that: (i) The Non-federal Agency applicant intends to submit individual projects covered by the master plan to the Commission within five years of the date of Commission action on the master plan; and (ii) The Non-federal Agency applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for a specific project referenced in the master plan; and (3) An application for approval of land acquisitions undertaken pursuant to 40 U.S.C. 8731–8732. § 601.5 Lead Agency obligations. (a) The obligations of a Federal Agency applicant designated as the Lead Agency in accordance with § 601.4(a) shall include, without limitation, the following: (1) Act as Lead Agency as defined in 40 CFR 1501.5 for the NEPA process. (2) Designate NCPC to participate as a Co-lead or Cooperating Agency and consult with Commission staff as early as possible in the planning process to obtain guidance with respect to the goals, objectives, standards, purpose, need, and alternatives for the NEPA analysis. (3) Invite affected federal, state, regional and local agencies, and other potentially interested parties to participate as a Cooperating Agency in the NEPA process. (4) Consult with the affected agencies and entities as early as possible in the planning process to obtain guidance on the goals, objectives, standards, purpose, need, and alternatives for the NEPA analysis. (5) Work with Cooperating Agencies and stakeholders, e.g., those with a direct stake in the outcome, in the following manner: (i) Keep them informed on the project schedule and substantive matters; and (ii) Allow them an opportunity to review and comment within reasonable time frames on, without limitation, Public Scoping notices; technical reports; public materials (including responses to comments received from the public); potential mitigation measures; the draft EA or EIS; and the draft FONSI or ROD. (6) Prepare the appropriate NEPA Document consistent with the applicant’s NEPA regulations, the requirements of this part, and CEQ regulations. (7) Determine in its NEPA Document whether an action will have an adverse PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 24575 environmental impact or would limit the choice of reasonable alternatives under 40 CFR 1505.1(e) and take appropriate action to ensure that the objectives and procedures of NEPA are achieved. (8) Prepare, make available for public review, and issue a FONSI or ROD. (9) Ensure that the draft and final EIS comply with the requirements of 40 CFR 1506.5(c) and include a disclosure statement executed by any contractor (or subcontractor) under contract to prepare the EIS document and that the disclosure appears as an appendix to the EIS. (10) Compile, maintain, and produce the Administrative Record. (11) Provide periodic reports on implementation of Mitigation measures to NCPC and other Cooperating Parties consistent with a schedule established in the NEPA Document. (12) Re-evaluate and update NEPA documents that are five or more years old as measured from the time of their adoption when either or both of the following criteria apply: (i) There are substantial changes to the proposed action that are relevant to environmental concerns; and (ii) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts. (13) Consult with NCPC on the outcome of the re-evaluation of its NEPA Document; provided that the NCPC reserves the right to make the final determination as to whether a Lead Agency’s NEPA document requires updating. (b) When NCPC serves as Lead Agency in accordance with § 601.4(b), in addition to the obligations listed in paragraphs (a)(1) through (12) of this section, NCPC may: (1) Ask applicants, at its sole discretion, to enter into a MOU. The MOU may be prepared as a programmatic MOU that addresses a uniform approach for the treatment of all applications from a particular applicant or address a specific application. The request to enter into a project specific MOU shall be made after a determination is made as to theinability to utilize a CATEX. A MOU shall specify, without limitation, project information; roles and responsibilities; project timelines and schedules; principal contacts and contact information; and a mechanism for resolving disputes. (2) Request assistance from a Nonfederal Agency applicant with the preparation of a NEPA Document. If requested by NCPC, the assistance shall E:\FR\FM\30MYP1.SGM 30MYP1 24576 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules include the provision of funding for a contractor retained by NCPC to prepare the requisite NEPA document. When Non-federal Agency financial assistance is requested, NCPC shall invite the Nonfederal Agency applicant to participate in the procurement process to select the contractor. (3) Require Non-federal Agency applicants to submit periodic reports on implementation of Mitigation measures to NCPC consistent with a schedule established in the NEPA Document. § 601.6 Resolving disputes over Lead Agency status. (a) In the event of a dispute with a Federal Agency applicant or a Nonfederal Agency applicant over Lead Agency status, the parties shall use their best efforts to cooperatively resolve disputes at the working levels of their respective agencies and, if necessary, by escalating such disputes within their respective agencies. (b) If internal resolution at higher agency levels proves unsuccessful, at NCPC’s sole discretion, one of the following actions shall be pursued: the parties shall request CEQ’s determination on which agency shall serve as Lead, NCPC shall prepare its own NEPA Document, or NCPC shall decline to take action on the underlying application. (c) Disputes other than those relating to the designation of Lead Agency status or Cooperating Status as described in § 601.7(b), shall be governed by the requirements of subpart G of this part. sradovich on DSK3GMQ082PROD with PROPOSALS § 601.7 Cooperating Agencies. (a) When a Federal Agency applicant serves as the Lead Agency, NCPC shall act as a Cooperating Agency. As a Cooperating Agency, NCPC shall, without limitation, undertake the following: (1) Act as a Cooperating Agency as described in 40 CFR 1501.6. (2) Assist in the preparation of and sign a MOU if requested by the Lead Agency. At the lead agency’s discretion, the MOU may be prepared as a programmatic MOU that addresses a uniform approach for the treatment of all applications where NCPC serves as a cooperating agency or address a specific application. The request to enter into a project specific MOU shall be made after a determination is made as to the inability to utilize a CATEX. (3) Participate in the NEPA process by providing comprehensive, timely reviews of and comments on key NEPA materials including, without limitation, Public Scoping notices; technical reports; documents (including responses to comments received from the public); VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 the draft and final EA or EIS; and the FONSI or ROD. (4) Supply available data, assessments, and other information that may be helpful in the preparation of the NEPA Document or the Administrative Record in a timely manner. (5) Make an independent evaluation of the Federal Agency applicant’s NEPA Document and take responsibility for the scope and contents of the EIS or EA when it is sufficient as required by 40 CFR 1506.5. (6) Prepare and sign a ROD or FONSI or, if NCPC concurs with the contents of the document, co-sign the Federal Agency’s ROD or FONSI. (7) Provide documentation as requested and as needed by the Lead Agency for the Administrative Record. (b) In the event a Federal Agency applicant fails to allow NCPC to participate in a meaningful manner as a Cooperating Agency, the parties shall agree to use their best efforts to cooperatively resolve the issue at the working levels of their respective agencies, and, if necessary, by escalating the issue within their respective agencies. If internal resolution at higher agency levels is unsuccessful, NCPC at its sole discretion shall either require the parties to seek mediation, prepare its own NEPA Document either as a standalone document or a supplement to the Federal Agency applicant’s NEPA Document, or take no action on the underlying application. (c) When NCPC serves as Lead Agency on behalf of Non-federal Agency applicant, the Non-federal Agency applicant shall serve as a Cooperating Agency and comply with the requirements of paragraphs (a)(1) through (4) and (7) of this section. Nonfederal Agency applicants shall extend all assistance necessary to facilitate NCPC’s compliance with NEPA including the provision of funding for consultant services if requested. Subpart C—NEPA Submission Schedules § 601.8 NEPA submission schedule for applications governed by the National Capital Planning Act. (a) Federal Agency and Non-federal Agency applicants shall comply with NEPA for the following types of projects: (1) Projects requiring Commission approval; and (2) Master plans requiring Commission action with future projects requiring subsequent Commission approval; provided that: (i) The applicant intends to submit individual projects depicted in the PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 master plan to the Commission within five years of the date of Commission action on the master plan; and (ii) The applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for specific projects referenced in the master plan. (b) When Federal Agency and Nonfederal Agency applicants submit projects of the type described in paragraph (a) of this section, the applicant shall submit the NEPA documentation timed to coincide with the Commission’s review stages as set forth in paragraphs (c) through (f) of this section. (c) Concept review. If NCPC’s Submission Guidelines require review at the concept stage, the NEPA Public Scoping process shall have been initiated before the applicant submits an application for concept review. Available NEPA documentation, including a CATEX determination, shall be included in the application to facilitate effective Commission concept review. (d) Preliminary review. An applicant shall have issued or published its Draft NEPA Document before the applicant submits an application for preliminary review. The NEPA information shall be provided to the Commission to facilitate the Commission’s preliminary review and the provision of meaningful Commission comments and direction. (e) Final review. The responsible Lead Agency shall complete and sign the final determination ROD or a FONSI) resulting from the NEPA Document before the applicant submits an application for final review. If NCPC is not the Lead Agency for NEPA, it shall at the time of final review undertake the steps outlined in § 601.7(a)(5) and (6). If applicable, the Section 106 consultation process required by the NHPA shall also be complete at this stage. (f) Deviations from the submission schedule for emergency circumstances. (1) This paragraph (f) applies when the following three conditions exist: (i) NCPC is the Lead Agency; (ii) Emergency Circumstances exist; and (iii) An Extraordinary Circumstance as set forth in § 601.11 is present that precludes use of a CATEX. (2) When the three conditions described in paragraphs (f)(1)(i) through (iii) of this section exist, the Executive Director shall make a determination as to whether the CATEX can or cannot be applied as soon as practicable. If the Executive Director determines a CATEX may not be applied, he/she shall take one of the steps indicated in paragraph (f)(2)(i) or (ii) of this section. E:\FR\FM\30MYP1.SGM 30MYP1 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules (i) When Emergency Circumstances render it necessary to take an action that requires an EA before the EA can be competed, the Executive Director shall develop alternative arrangements focused on minimizing environmental impacts of the proposed action. These steps shall follow those normally undertaken for an EA, to include, to the maximum extent practicable, preparation of a document with appropriate content, interagency coordination, and public notification and involvement. The Commission shall grant approval for the alternative arrangement. At the earliest opportunity, the Executive Director shall advise CEQ of the alternative arrangement. (ii) Where Emergency Circumstances make it necessary for the Commission to take an action with significant environmental impacts without observing the rules of this part and CEQ’s regulations, the Executive Director shall advise the Commission of the situation. Thereafter, as soon as practicable, the Executive director shall consult with CEQ regarding alternative arrangements for complying with NEPA. sradovich on DSK3GMQ082PROD with PROPOSALS § 601.9 NEPA submission schedule for applications governed by the Commemorative Works Act. (a) When, pursuant to the Commemorative Works Act, NPS or GSA submits an application to the Commission for approval of a site and design for a commemorative work, the applicant shall be required to comply with NEPA and submit the NEPA documentation timed to coincide with the Commission’s review stages as set forth in paragraphs (b) through (e) of this section. (b) Concept site review. (1) If NCPC’s Submission Guidelines require concept site review, the NEPA Scoping Process shall have been initiated before NPS or GSA submits an application to the Commission for concept site review. Available NEPA documentation for all concept sites shall be included in the application to facilitate effective Commission concept review. (2) The Commission shall provide comments to NPS or GSA on the multiple sites to assist the applicant in selecting a preferred site. (c) Concept design review for preferred sites. (1) If NCPC’s Submission Guidelines require concept design review, the NEPA Public Scoping Process shall have been initiated before NPS or GSA submits an application to the Commission for a concept design review. Available NEPA documentation shall be included in the application to VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 facilitate effective Commission concept review. (2) The Commission shall provide comments to NPS or GSA on the preferred site(s) and the concept designs for each site to facilitate selection of a preferred site and refinement of the memorial design for that site. The Commission may impose conditions on or establish guidelines for the applicant to follow in preparing its preliminary and final commemorative work design to avoid, minimize or mitigate environmental impacts including adverse effects on historic properties. (d) Preliminary site and design review. (1) NPS or GSA shall have issued or published its Draft NEPA Document for the site selection process and the memorial design and shall have initiated the requisite public comment period before the applicant submits an application for preliminary site and design approval. The NEPA information shall be provided to the Commission to facilitate the Commission’s preliminary review and the provision of meaningful Commission comments and directions. (2) The Commission shall take an appropriate action on the preferred site and preliminary design and provide comments to the applicant on the preliminary design to assist the applicant’s preparation of a final design. (e) Final site and design review. The final environmental determination (ROD or FONSI) applicable to both the site selection and memorial design shall be completed and signed by NPS or GSA before the applicant submits an application for final review. NCPC shall have either co-signed the NPS or GSA ROD or FONSI or prepared and signed its own independent document. If applicable, the Section 106 consultation process required by the NHPA shall also be complete at this stage. Subpart D—Initiating the NEPA Process § 601.10 Characteristics of Commission actions eligible for a Categorical Exclusion. (a) A categorical exclusion is a type of action that does not individually or cumulatively have a significant effect on the human environment and which has been found to have no such effect by NCPC. (b) Actions that generally qualify for application of a categorical exclusion and do not require either an EA or an EIS exhibit the following characteristics: (1) Minimal or no effect on the human environment; (2) No significant change to existing environmental conditions; (3) No significant cumulative environmental impacts; and PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 24577 (4) Similarity to actions previously assessed in an EA concluding in a FONSI and monitored to confirm the FONSI. § 601.11 Extraordinary Circumstances. (a) Before applying a CATEX listed in § 601.12, the Executive Director shall consider whether a project or plan requires additional environmental review or analysis due to the existence of Extraordinary Circumstances. If any of the Extraordinary Circumstances listed in paragraphs (b)(1) through (10) of this section are present, the Executive Director shall direct staff to undertake a preliminary analysis to determine if the presence of the Extraordinary Circumstances negates the application of a CATEX. If the preliminary analysis determines application of a CATEX is not appropriate, the Executive Director shall see that the proper NEPA Document is prepared and made available to the Commission before the Commission takes action on the matter. If the Extraordinary Circumstance does not negate application of a CATEX, the appropriate CATEX shall be applied and its application documented for the record. (b) Extraordinary Circumstances that may negate the application of a CATEX include: (1) A reasonable likelihood of significant impact on public health or safety. (2) A reasonable likelihood of significant environmental impacts on sensitive resources unless the impact has been resolved through another processes to include, without limitation, Section 106 of the NHPA. Environmentally sensitive resources include without limitation: (i) Proposed federally listed, threatened or endangered species or their designated critical habitats. (ii) Properties listed or eligible for listing on the National Register of Historic Places. (iii) Areas having special designation or recognition based on federal law or an Executive Order, to include without limitation, National Historic Landmarks, floodplains, wetlands, and National Parks. (iv) Cultural, scientific or historic resources. (3) A reasonable likelihood of effects on the environment that are risky, highly uncertain, or unique. (4) A reasonable likelihood of violating an Executive Order, or federal, state or local law or requirements imposed for the protection of the environment. (5) A reasonable likelihood of causing a significant increase in surface E:\FR\FM\30MYP1.SGM 30MYP1 24578 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules transportation congestion, disruption of mass transit, and interference with pedestrian and bicycle movements. (6) A reasonable likelihood of significantly degrading air quality or violating air quality control standards under the Clean Air Act (42 U.S.C. 7401–7671q). (7) A reasonable likelihood of significantly impacting water quality, public water supply systems, or state or local water quality control standards under the Clean Water Act (33 U.S.C. 1251 et seq.) and the Safe Drinking Act (42 U.S.C. 300f). (8) A reasonable likelihood of a disproportional high and adverse effect on low income and minority populations. (9) A reasonable likelihood of degrading existing unsatisfactory environmental conditions. (10) A reasonable likelihood of establishing a precedent for future action or making a decision in principle about future actions with potentially significant environmental effects. (c) The Executive Director shall include in his EDR, or the documentation of a Delegated Action, his/her decision to apply or not apply a Categorical Exclusion because of Extraordinary Circumstances and the rationale for this decision. sradovich on DSK3GMQ082PROD with PROPOSALS § 601.12 National Capital Planning Commission Categorical Exclusions. Commission actions that may be categorically excluded and normally do not require either an EA or an EIS include: (a) Approval of the installation or restoration of onsite primary or secondary electrical distribution systems including minor solar panel arrays. (b) Approval of the installation or restoration of minor site elements, such as but not limited to identification signs, sidewalks, patios, fences, curbs, retaining walls, landscaping, and trail or stream improvements. Additional features include water distribution lines and sewer lines which involve work that is essentially replacement in kind. (c) Approval of the installation or restoration of minor building elements, such as, but not limited to windows, doors, roofs, building signs, and rooftop equipment and green roofs. (d) Adoption of a Federal Element of the Comprehensive Plan or amendment thereto or broad based policy or feasibility plans prepared and adopted by the Commission in response to the Comprehensive Plan. (e) Approval of an action proposed by a District of Columbia agency which the agency has determined is not a major VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 action significantly affecting the quality of the human environment or is designated an exclusion in accordance with the requirements and procedures of DC Code. 8–109.06 and any regulations adopted to implement the referenced statutory provision. (f) Approval of changes to highway plans for portions of the District of Columbia prepared by the Mayor, pursuant to D.C Code. 9–103.02, subject to documentation by the District that such plans involve no major traffic volume increase, have minimal or no effect on the environment, result in no significant change to existing environmental conditions, and impose no significant cumulative environmental impact associated with the action associated with the action as demonstrated in accordance with the requirements and procedures of DC Code. 8–109.01 et seq. and any regulations adopted to implement the referenced statutory provisions. (g) Approval of the sale by the Secretary of the Interior of parcels of real estate held by the United States in the District of Columbia under the jurisdiction of NPS that are no longer needed for public purposes pursuant to 40 U.S.C. 8735. Such an action shall be accompanied by a NPS NEPA determination that demonstrates minimal or no effect on the environment, no significant change to existing environmental conditions, and no significant cumulative environmental impact associated with the action. (h) Approval of the exchange of parcels of District-owned land, or part thereof, for an abutting lot or parcel of land, or part thereof pursuant to DC Code. 10–901, when such plans involve minimal or no effect on the environment, no significant change to existing environmental conditions, and no significant cumulative environmental impact associated with the action as demonstrated in accordance with the requirements and procedures of DC Code 8–109.01 et seq. and any regulations adopted to implement the referenced statutory provisions. (i) Approval of the installation of communication antennae on federal buildings and co-location of communication antennae on federal property consistent with GSA Bulletin FMR D–242, Placement of Commercial Antennas on Federal Property. (j) Approval of new construction, building expansion, or improvements to existing facilities, when: (1) The new structure and proposed use are in compliance with local planning and zoning and any applicable PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 District of Columbia, state, or federal requirements. (2) The site and the scale of construction are consistent with those of existing adjacent or nearby buildings. (3) The proposed use will not substantially increase the number of motor vehicles at the Facility. (4) There is no evidence of community controversy or other environmental issues. (k) Approval of transfers of jurisdiction pursuant to 40 U.S.C. 8421(a) that will not lead to anticipated changes in the use of land and that have no potential for environmental impact. (l) Approval of a minor modification to a General Development Plan applicable to lands acquired pursuant to the Capper-Cramton Act, 46 Stat. 482 (1930), as amended, when no or minimal environmental impacts are anticipated. (m) Approval of an action proposed by a Federal Agency applicant when such applicant has determined a categorical exclusion set forth in its NEPA-implementing procedures applies to the proposed action; provided the Executive Director shall review the determination as to both the applicability of the exclusion and the absence of any extraordinary circumstances. (n) Reorganization of NCPC. (o) Personnel actions, including, but not limited to, investigations; performance reviews; award of personal service contracts, promotions, and awards; reductions in force, reassignments and relocations; and employee supervision and training. (p) Legal activities including, but not limited to, legal advice and opinions; litigation or other methods of dispute resolution; and procurement of outside legal services. (q) Procurement of goods and services, transactions, and other types of activities related to the routine and continuing administration, management, maintenance and operations of the Commission or its facilities. (r) Adoption and issuance of rules, directives, official policies, guidelines, and publications or recommendations of an educational, financial, informational, legal, technical or procedural nature. Subpart E—Environmental Assessments § 601.13 Characteristics of Commission actions eligible for an Environmental Assessment. (a) An EA is a concise document with sufficient information and analysis to enable the Executive Director to E:\FR\FM\30MYP1.SGM 30MYP1 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules determine whether to issue a FONSI or prepare an EIS. (b) Commission actions that generally require an EA exhibit the following characteristics: (1) Minor but likely insignificant degradation of environmental quality; (2) Minor but likely insignificant cumulative impact on environmental quality; and (3) Minor but likely insignificant impact on protected resources. § 601.14 Commission actions generally eligible for an Environmental Assessment. Commission actions that typically require preparation of an EA include without limitation: (a) Approval of final plans for Federal public buildings in the District of Columbia, and the provisions for open space in and around the same, pursuant to 40 U.S.C. 8722(d) and DC Code 2– 1004(c), unless such plans meet the criteria of § 601.12(j). (b) Approval of final plans for District of Columbia public buildings and the open space around them within the Central Area pursuant to 40 U.S.C. 8722(e) and DC Code 2–1004(d) unless such plans meet the criteria of § 601.12(e) or (j). (c) Recommendations to a Federal or District of Columbia agency on any master plan or master plan modification submitted to the Commission that include proposed future projects that require Commission approval pursuant to 40 U.S.C. 8722(d)–(e) and DC Code 2– 1004(c)–(d) within a five-year timeframe. (d) Approval of a final site and design for a commemorative work authorized under the Commemorative Works Act pursuant to 40 U.S.C. 8905. (e) Approval of transfers of jurisdiction over properties within the District of Columbia owned by the United States or the District among or between federal and District authorities, pursuant to 40 U.S.C. 8124(a), unless such transfers met the criteria of § 601.12(k). sradovich on DSK3GMQ082PROD with PROPOSALS § 601.15 Process for preparing an Environmental Assessment. An EA prepared by NCPC as the Lead Agency for a project requiring Commission approval shall comply with the following requirements: (a) The EA shall include, without limitation, a brief discussion of the proposed action; the need for the proposed action; the environmental impacts of the proposed action; the environmental impacts of the alternatives considered; Mitigation measures, if necessary; and a list of agencies and persons consulted in preparation of the assessment. VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 24579 (b) The NCPC shall involve, as appropriate, applicants; Federal and District of Columbia agencies; the public; and stakeholders (those with an economic, cultural, social, or environmental ‘‘stake’’ in the action) in the preparation of an EA. (c) The NCPC, at the sole discretion of the Executive Director, may undertake Public Scoping for an action requiring an EA. The Public Scoping shall commence thirty calendar days after issuance of a public notice of NCPC’s intent to prepare an EA. The notice shall include the date, time and location of the Public Scoping meeting. (d) The NCPC may solicit public review and comment of a Draft EA. The public comment period shall be a minimum of thirty calendar days. The public comment period shall begin when the Executive Director announces the availability of the Draft EA on the NCPC Web site (www.ncpc.gov). The NCPC, at its sole discretion, may decline to circulate a draft EA for noncontroversial projects. § 601.17 Supplemental Environmental Assessments. § 601.16 Prior to the Commission’s approval of a major federal action significantly affecting the quality of the human environment, the Executive Director shall prepare an EIS on behalf of a Nonfederal Agency applicant. Finding of No Significant Impact. (a) If NCPC is the Lead Agency and the final EA supports a FONSI, NCPC shall prepare and execute a FONSI. The FONSI shall be prepared following closure of the discretionary public comment period on a Draft EA, or if no circulation is deemed necessary, at the conclusion of the preparation of an EA. The FONSI shall briefly state the reasons why the proposed action will not have a significant effect on the environment and include the EA or a summary thereof, any Mitigation commitments, and a schedule for implementing the Mitigation commitments. (b) If NCPC is not the Lead Agency, it shall evaluate the adequacy of the Lead Agency’s FONSI, and if determined adequate, NCPC may cosign the Lead Agency’s FONSI. Alternatively, NCPC may prepare and execute its own FONSI consistent with the requirements of paragraph (a) of this section. (c) A FONSI prepared by NCPC shall be available for public review seven calendar days before the Commission takes action on the underlying application. (d) If the Commission determines a Lead Agency’s EA does not support a FONSI, either the Lead Agency shall prepare an EIS, or the Commission shall not approve or consider further the underlying application. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 (a) The NCPC shall prepare a supplemental EA if five or more years have elapsed since adoption of the EA and: (1) There are substantial changes to the proposed action that are relevant to environmental concerns; and (2) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts. (b) The NCPC may supplement a Draft or Final EA at any time to further the purposes of NEPA. (c) The NCPC shall prepare, circulate, and file a supplement to a Draft or Final EA, and adopt a FONSI in accordance with the requirements of §§ 601.15 and 601.16. If NCPC is not the Lead Agency, it shall proceed as outlined in § 601.16(b) and (c). Subpart F—Environmental Impact Statements § 601.18 Requirement for and timing of an Environmental Impact Statement. § 601.19 Context, intensity, and significance of impacts. (a) As required by 40 CFR 1508.27(a) and (b), the determination of whether an EIS is required and whether impacts are significant shall be made with consideration to the context and intensity of the impacts associated with a proposed action. (b) The significance of an action is determined in the context of its effects on society as a whole, the National Capital Region and its environs, the particular interests affected, and the specific locality or area within which the proposed action is located. The context will vary from project to project and will be based on the type, attributes, and characteristics of a particular proposal. (c) The significance of an action is also determined based on the severity of impacts imposed by the proposal. Severity shall be determined based on an evaluation of a proposal in the manner outlined in 40 CFR1508.27(b)(1) through (10). The evaluation shall also be informed by the relevant policies of ‘‘The Comprehensive Plan for the National Capital: Federal Elements’’ and other applicable Commission plans and programs. Proposed actions that conflict E:\FR\FM\30MYP1.SGM 30MYP1 24580 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules with or delay achievement of the goals and objectives of Commission plans and programs are generally more likely to be found to have significant impacts than proposals that are consistent with Commission plans and programs. (d) Proposed actions shall also be deemed significant and require and EIS if they exhibit the following characteristics: (1) The proposed action results in extensive change to the Monumental Core. (2) The proposed action causes substantial alteration to the important historical, cultural, and natural features of the National Capital and its Environs. (3) The proposed action is likely to be controversial because of its impacts on the human environment. § 601.20 Streamlining Environmental Impact Statements. The NCPC as Lead Agency shall use all available techniques to minimize the length of an EIS. Such techniques include, without limitation, drafting an EIS in clear, concise language; preparing an analytic vs. encyclopedic EIS; reducing emphasis on background information; using the scoping process to emphasize significant issues and deemphasize non-significant issues; incorporating relevant information by reference; using a programmatic EIS and tiering to eliminate duplication in subsequent EISs; and following the format guidelines of § 601.22. § 601.21 Programmatic Environmental Impact Statements and tiering. sradovich on DSK3GMQ082PROD with PROPOSALS (a) The NCPC shall prepare a programmatic NEPA Document (Programmatic EA or PEA or Programmatic EIS or PEIS) to assess the impacts of proposed projects and plans when there is uncertainty regarding the timing, location and environmental impacts of subsequent implementing actions. At the time NCPC undertakes a site or project specific action within the parameters of the PEA or PEIS, NCPC shall tier its NEPA Document by summarizing information in the PEIS or PEA, as applicable, and concentrate on the issues applicable to the specific action. (b) A PEIS or PEA prepared by NCPC shall be governed by the CEQ regulations and the rules of this part. § 601.22 Contents of an Environmental Impact Statement. When NCPC serves as Lead Agency for an EIS, the following information shall be included in the EIS: (a) A cover sheet. The cover sheet shall be one-page and include a list of responsible and Cooperating Agencies; the title of the proposed action that is VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 the subject of the EIS; the name, address, and telephone number of the NCPC point of contact; the designation as to whether the statement is draft, final, or draft or final supplement; a one paragraph abstract of the EIS; and the date by which comments must be received. (b) A summary. The summary shall accurately summarize the information presented in the EIS. The summary shall focus on the main conclusions, areas of controversy, and the issues to be resolved. The summary shall not exceed fifteen pages. (c) A table of contents. The table of contents shall allow a reader to quickly locate subject matter in the EIS—either by topic area and/or alternatives analyzed. (d) The purpose and need. A statement of the purpose of and need for the action briefly stating the underlying purpose and need to which the agency is responding. (e) The identification of alternatives including the proposed action. This section shall provide a brief description and supporting documentation for all alternatives including the proposed action; the no action alternative; all reasonable alternatives including those not within the jurisdiction of the agency; alternatives considered but eliminated and the reason for their elimination; the agency’s preferred alternative, if one exists; the environmentally preferred alternative; and Mitigation measures not already included in the proposed action. (f) The identification of the affected environment. This section shall provide a succinct description of the environment to be affected by the proposed action and the alternatives considered. This section shall include, if applicable, other activities in the area affected by or related to the proposed action. (g) The identification of environmental consequences. This section shall focus on the environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible commitments of resources which would be involved if the proposal is implemented. The impacts shall be discussed in terms of direct, indirect and cumulative effects and their significance, as well as any appropriate means to mitigate adverse impacts. The discussion shall also include issues and impact topics PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 considered but dismissed to reveal nonimpacted resources. Resource areas and issues requiring consideration shall include those identified in the scoping process, and, without limitation, the following: (1) Possible conflicts between the proposed action and the land use plans, policies, or controls (local, state, or Indian tribe) for the area concerned. (2) Natural and biological resources including topography, hydrology, soils, flora, fauna, floodplains, wetlands, and endangered species. (3) Air quality. (4) Noise. (5) Water resources including wastewater treatment and storm water management. (6) Utilities including energy requirements and conservation. (7) Solid waste and hazardous waste generation/removal. (8) Community facilities. (9) Housing. (10) Transportation network. (11) Socio-cultural and economic environments. (12) Environmental Justice and the requirements of Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations). (13) Urban quality and design of the built environment including visual resources and aesthetics. (14) Historic and cultural resources to include documentation of the results of the Section 106 Consultation process. (15) Public health and safety. (h) A list of preparers. This list shall include all pertinent organizations, agencies, individuals, and government representatives primarily responsible for the preparation of the EIS and their qualifications. (i) An index. The index shall be structured to reasonably assist the reader of the Draft or Final EIS in identifying and locating major topic areas or elements of the EIS information. The level of detail of the index shall provide sufficient focus on areas of interest to any reader not just the most important topics. (j) An appendix. The appendix shall consist of material prepared in connection with an EIS (as distinct from material which is incorporated by reference) and material which substantiates any analysis fundamental to the EIS. The material in the appendix shall be analytical and relevant to the decision to be made. The appendix shall be circulated with the EIS or be readily available upon request. E:\FR\FM\30MYP1.SGM 30MYP1 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules of the Draft EIS and include the public meeting date, time, and location. sradovich on DSK3GMQ082PROD with PROPOSALS § 601.23 The Environmental Impact Statement process. (a) The NCPC shall involve the applicant, Federal and District of Columbia agencies, members of the public and stakeholders in the preparation of an EIS. Public participation shall be required as part of Public Scoping process and review of the Draft EIS. The NCPC shall also consult with agencies having jurisdiction by law or expertise. Agencies with ‘‘jurisdiction by law’’ are those with ultimate jurisdiction over a project and whose assistance may be required on certain issues and those with other kinds of regulatory or advisory authority with respect to the action or its effects on particular environmental resources. (b) To determine the scope of an EIS through a Public Scoping process, NCPC shall proceed as follows: (1) Disseminate a NOI in accordance with 40 CFR 1506.6. (2) Publish a NOI in the Federal Register which shall begin the Public Scoping process. (3) Include the date, time, and location of a Public Scoping meeting in the NOI. The public meeting shall be announced at least thirty calendar days in advance of its scheduled date. (4) Hold Public Scoping meeting(s) in facilities that are accessible to the disabled; include Translators requested in advance; include signers or interpreters for the hearing impaired if requested in advance; and allow special arrangements for consultation with affected Indian tribes or other Native American groups who have environmental concerns that cannot be shared in a public forum. (5) Consider all comments received during the announced comment period regarding the analysis of alternatives, the affected environment, and identification of potential impacts. (6) Apply the provisions of this section to a Supplemental EIS if the Executive Director of NCPC, in his/her sole discretion, determines a Public Scoping process is required for a Supplemental EIS. (c) A Draft EIS shall be available to the public for their review and comment, for a period of not less than forty-five calendar days. The public comment period shall begin when EPA publishes a NOA of the document in the Federal Register. The NCPC shall hold at least one public meeting during the public comment period on a Draft EIS. The public meeting shall be announced at least thirty calendar days in advance of its scheduled occurrence. The announcement shall identify the subject VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 § 601.24 Final Environmental Impact Statement. (a) The NCPC shall prepare a Final EIS following the public comment period and the public meeting(s) on the Draft EIS. The Final EIS shall respond to oral and written comments received during the Draft EIS public comment period. (b) The Commission shall take final action on an application following a thirty-day Commission-sponsored review period of the Final EIS. The thirty-day period shall start when the EPA publishes a NOA for the Final EIS in the Federal Register. § 601.25 Record of Decision. (a) If NCPC as the Lead Agency decides to recommend approval of a proposed action covered by an EIS, it shall prepare and sign a ROD stating the Commission’s decision and any conservation or Mitigation measures required by the Commission. The ROD shall include among others: (1) A statement of the decision. (2) The identification of alternatives considered in reaching a decision specifying the alternatives that were considered to be environmentally preferable. The ROD shall discuss preferences among alternatives based on relevant factors including economic and technical planning considerations and the Commission’s statutory mission. The ROD s shall identify those factors balanced to reach a decision and the influence of various factors on the decision. (3) A statement as to whether all practicable means to avoid or minimize environmental harm from the alternative selected has been adopted, and if not, why they are not. (4) A monitoring and enforcement program that summarizes Mitigation measures. (5) Date of issuance. (6) Signature of the Chairman. (b) The contents of the ROD proposed for Commission adoption shall be summarized in the EDR and a full version of the document shall be included as an Appendix to the EDR. The proposed ROD, independently of the EDR, shall be made available to the public for review fourteen calendar days prior to the Commission’s consideration of the proposed action for which the EIS was prepared. (c) The Commission shall arrive at its decision about the proposed action and it’s environmental effects in a public meeting of record as identified by the Commission’s monthly agenda. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 24581 (d) If NCPC is not the Lead Agency, it shall either co-sign the Lead Agency’s ROD if it agrees with its contents and conclusions or it shall prepare and sign its own ROD consistent with the requirements of paragraph (a) of this section. (e) If the Commission determines a Lead Agency’s EIS fails to support a ROD, the Lead Agency shall revise its EIS, or, alternatively, the Commission shall not approve or give any further consideration to the underlying application. § 601.26 Supplemental Environmental Impact Statement. (a) The NCPC shall prepare a supplemental EIS if five or more years has elapsed since adoption of the EIS and: (1) There are substantial changes to the proposed action that are relevant to environmental concerns; and (2) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts. (b) The NCPC may supplement a Draft or Final EIS at any time, to further the purposes of NEPA. (c) The NCPC shall prepare, circulate, and file a supplement to a Draft or Final EIS in accordance with the requirements of §§ 601.22 through 601.24 of this part except that Public Scoping is optional for a supplemental EIS. (d) The NCPC shall prepare a ROD for a Supplemental EIS. The ROD’s contents, the procedure for public review, and the manner in which it shall be adopted shall be as set forth in § 601.25. § 601.27 Legislative Environmental Impact Statement. (a) Consistent with 40 CFR 1506.8, the Executive Director shall prepare an EIS for draft legislation initiated by NCPC for submission to Congress. The EIS for the proposed legislation shall be included as part of the formal transmittal of NCPC’s legislative proposal to Congress. (b) The requirements of this section shall not apply to legislation Congress directs NCPC to prepare. Subpart G—Dispute Resolution § 601.28 Dispute resolution. Any disputes arising under this part, shall be resolved, unless otherwise stated, by the parties through interagency, good faith negotiations starting at the working levels of each agency, and if necessary, by escalating such disputes within the respective agencies. If resolution at higher levels is E:\FR\FM\30MYP1.SGM 30MYP1 24582 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Proposed Rules unsuccessful, the parties shall resort to mediation. § 601.29 [Reserved] Dated: May 23, 2017. Anne R. Schuyler, General Counsel. [FR Doc. 2017–10940 Filed 5–26–17; 8:45 am] BILLING CODE P DEPARTMENT OF ENERGY 2 CFR Chapter IX 5 CFR Chapter XXIII 10 CFR Chapters II, III and X 41 CFR Chapter 109 48 CFR Chapter 9 Reducing Regulation and Controlling Regulatory Costs Office of the Secretary, Department of Energy. ACTION: Request for information (RFI). AGENCY: As part of its implementation of Executive Order 13771, ‘‘Reducing Regulation and Controlling Regulatory Costs,’’ issued by the President on January 30, 2017, the Department of Energy (DOE) is seeking comments and information from interested parties to assist DOE in identifying existing regulations, paperwork requirements and other regulatory obligations that can be modified or repealed, consistent with law, to achieve meaningful burden reduction while continuing to achieve the Department’s statutory obligations. DATES: Written comments and information are requested on or before July 14, 2017. ADDRESSES: Interested persons are encouraged to submit comments, identified by ‘‘Regulatory Burden Reduction RFI,’’ by any of the following methods: Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. Email: Regulatory.Review@ hq.doe.gov. Include ‘‘Regulatory Burden RFI’’ in the subject line of the message. Mail: U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW., Room 6A245, Washington, DC 20585. FOR FURTHER INFORMATION CONTACT: Daniel Cohen, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW., Washington, DC 20585. Telephone: (202) 586–5000. Email: Regulatory.Review@hq.doe.gov. sradovich on DSK3GMQ082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 19:39 May 26, 2017 Jkt 241001 On January 30, 2017, the President issued Executive Order 13771, ‘‘Reducing Regulation and Controlling Regulatory Costs.’’ That Order stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. The Order stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward that end, for fiscal year 2017, E.O. 13771 requires: (1) ‘‘Unless prohibited by law, whenever an executive department or agency . . . publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.’’ Sec. 2(a). (2) ‘‘For fiscal year 2017, . . . the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget . . . .’’ Sec. 2(b). (3) ‘‘In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.’’ Sec. 2(c). Further, the Executive Order requires that for fiscal year 2018, and for each fiscal year thereafter, the head of each agency shall identify, for each regulation that increases incremental cost, offsetting regulations, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation. During the Presidential budget process beginning in fiscal year 2018 and for each year thereafter, the Director of the Office of Management and Budget (Director) will identify to each agency a total amount of incremental costs that will be allowed for such agency in issuing new regulations and repealing regulations for the next fiscal year. No regulations exceeding the agency’s total incremental cost allowance will be permitted in that fiscal year, unless required by law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost. Additionally, on February 24, 2017, the President issued Executive Order 13777, ‘‘Enforcing the Regulatory Reform Agenda.’’ The Order required SUPPLEMENTARY INFORMATION: PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO shall oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force will make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force shall attempt to identify regulations that: (i) Eliminate jobs, or inhibit job creation; (ii) Are outdated, unnecessary, or ineffective; (iii) Impose costs that exceed benefits; (iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or (vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified. Finally, on March 28, 2017, the President signed Executive Order 13783, entitled ‘‘Promoting Energy Independence and Economic Growth. Among other things, E.O. 13783 requires the heads of agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. Such review does not include agency actions that are mandated by law, necessary for the public interest, and consistent with the policy set forth elsewhere in that order. Executive Order 13783 defined burden for purposes of the review of existing regulations to mean to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources. To implement these Executive Orders, the Department is taking two immediate steps. First, as described further below, E:\FR\FM\30MYP1.SGM 30MYP1

Agencies

[Federal Register Volume 82, Number 102 (Tuesday, May 30, 2017)]
[Proposed Rules]
[Pages 24570-24582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10940]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / 
Proposed Rules

[[Page 24570]]



NATIONAL CAPITAL PLANNING COMMISSION

1 CFR Chapter VI


National Environmental Policy Act Regulations.

AGENCY: National Capital Planning Commission

ACTION: Proposed rule; public meetings.

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

SUMMARY: The National Capital Planning Commission (NCPC or Commission) 
proposes to adopt new regulations governing NCPC's implementation of 
the National Environmental Policy Act (NEPA) and regulations 
promulgated by the Council on Environmental Quality (CEQ). Federal 
agencies and NCPC on behalf of non-federal agencies must comply with 
the requirements of NEPA and CEQ regulations for projects submitted to 
the Commission for review and approval.

DATES: Submit comments on or before July 14, 2017. Public meetings to 
discuss the proposed Policies and Procedures will be held on Tuesday, 
June 13, 2017 from 6:00 p.m.-7:30 p.m. and Thursday, June 15, 2017 from 
9:30 a.m.-11:00 a.m. Both meetings will be held at the National Capital 
Planning Commission, 401 9th Street NW., Suite 500, Washington, DC 
20004.

ADDRESSES: You may submit written comments on the proposed Policies and 
Procedures by either of the methods listed below.
    1. U.S. mail, courier, or hand delivery: Anne R. Schuyler, General 
Counsel/National Capital Planning Commission, 401 9th Street NW., Suite 
500, Washington, DC 20004.
    2. Electronically: nepa@ncpc.gov.

FOR FURTHER INFORMATION CONTACT: Anne R. Schuyler, General Counsel at 
202-482-7223 or nepa@ncpc.gov.

SUPPLEMENTARY INFORMATION: The current regulation are published on the 
NCPC Web site at the following location: https://www.ncpc.gov/ncpc/Main(T2)/ProjectReview(Tr2)/ProjectReview(Tr3)/
SubmissionGuidelines.html?sgpage=3. These regulations lay out the 
process federal agencies and NCPC on behalf of non-federal agencies 
must follow to ensure NEPA compliance. While the subject regulations 
are critical to the Commission's ability to carry out its review 
authorities, they have not been updated since 2004. As such, NCPC 
proposes revisions to its Environmental Policies and Procedures to 
simplify the regulations and streamline the agency's NEPA process. In 
this proposal, NCPC is also proposing to establish a new chapter 
(chapter VI) in title 1 of the Code of Federal Regulations (CFR) to 
promote orderly codification. As the NCPC updates its regulations 
currently found in 1 CFR parts 455, 456 and 457 it will move them to 
its new chapter VI in title 1.

Key Changes Incorporated Into NCPC's Proposed Environmental Policies 
and Procedures

    NCPC's current NEPA procedures were adopted in 2004 and generally 
remain appropriate and effective. However certain portions of the 
existing policies and procedures require revision to simplify, 
streamline, and improve the effectiveness of NCPC's process for 
complying with NEPA.
    One of the most significant changes incorporated into the proposed 
Environmental Policies and Procedures (Policies and Procedures) is the 
elimination of procedures for complying with Section 106 of the 
National Historic Preservation Act (NHPA). In 2004, when it adopted its 
current regulations, NCPC opted to issue combined NEPA and the NHPA 
regulations to ensure coordinated implementation of both procedures. 
However, regulations promulgated by the ACHP do not require agencies to 
adopt agency specific processes and procedures. Instead ACHP 
regulations establish the processes and procedures all federal agencies 
must follow. This resulted in the inclusion of duplicative information 
in NCPC's current policies and procedures. While this information 
proved helpful, it diverted attention away from NCPC's agency specific 
NEPA policies and procedures mandated by CEQ. Accordingly, the proposed 
Policies and Procedures delete detailed references to Section 106 
consultation procedures. They do retain references to coordination 
between NEPA and NHPA and consideration of historic resources in the 
NEPA process.
    To clarify roles and responsibilities, the proposed Policies and 
Procedures distinguish between federal agency applicants and non-
federal agency applicants. Federal agency applicants include cabinet 
level departments and executive agencies such as the U.S. General 
Services Administration (GSA). Non-federal agency applicants include, 
without limitation, the Smithsonian Institution, the John F. Kennedy 
Center for the Performing Arts, the National Gallery of Art, the US 
Institute of Peace, the Government of the District of Columbia, the 
Maryland National Capital Park and Planning Commission (MNCPPC) and 
private parties implementing projects on federal land. NCPC's 
jurisdiction extends to non-federal agency applicants when they 
undertake projects on federally-owned land. Under the proposed Policies 
and Procedures, NCPC serves as lead agency when the applicant is a non-
federal agency. While this deviates from current practice, the proposal 
ensures NCPC a prominent role in the NEPA process and the ability to 
ensure consideration of its views.
    The proposed Policies and Procedures also alter the timing and 
sequencing of an applicant's submission of NEPA documentation for 
applications governed by the National Capital Planning Act and the 
Commemorative Works Act. Under the current regulations, an applicant 
must complete the NEPA process at the time of preliminary review. Under 
the proposed regulations, an applicant must complete its NEPA process 
at the time of final review. This revised approach allows the 
Commission an opportunity to provide input on a project when it is 
still in the developmental phase. It also provides a NEPA sequencing 
consistent with federal agency project development schedules. This 
eliminates the pressure on federal agency applicants to expedite its 
NEPA process to meet NCPC's current sequencing policies.
    NCPC also proposes several changes to its list of projects eligible 
for application of a CATEX. NCPC proposes to eliminate three existing 
CATEXs because they are based on old, antiquated authorities which have 
little to no relationship to NCPC's present day review roles. NCPC 
proposes to add four

[[Page 24571]]

new CATEXs and to increase the number of extraordinary circumstances 
with the potential to negate application of CATEXs. The new CATEXs and 
extraordinary circumstances reflect matters addressed in federal, state 
and local laws and regulations and Executive Orders applicable to 
projects that come before NCPC.

Section by Section Analysis of NCPC's Proposed Environmental Policies 
and Procedures

    Subpart A--General. This subpart contains three subsections 
addressing purpose, policy and definitions.
    Sec.  601.1 Purpose. This section presents a clear, succinct 
statement of purpose.
    Sec.  601.2 Policies. This section states NCPC's policies 
implementing NEPA. The content is similar to that of the existing 
policies and procedures, but the proposed Policies and Procedures 
consolidate all policies into one section. The existing Policies and 
Procedures disperse NCPC's NEPA policies throughout multiple sections.
    Sec.  601.3 Definitions. This section defines terms frequently used 
in the document. It deletes definitions from the existing regulations 
that are infrequently or no longer used in the proposed regulations.
    Subpart B--Lead and Cooperating Agencies. This subpart assigns lead 
and cooperating agency status and states the obligations required of an 
applicant depending on their assigned status.
    Sec.  601.4 Designation of Lead Agency. This section confers lead 
agency status on federal agency applicants and upon NCPC when the 
applicant is a non-federal agency. By definition, a federal agency 
means the executive agencies defined in 5 U.S.C. 105. A non-federal 
agency applicant means those applicants outside the statutory 
definition of federal agency that undertake projects on federal land 
and include, without limitation, the Smithsonian Institution, the John 
F. Kennedy Center for the Performing Arts, the National Gallery of Art, 
the U.S. Institute of Peace, the Government of the District of 
Columbia, MNCPPC, and private parties undertaking development on 
federal land.
    Sec.  601.5 Lead Agency obligations. This section lists the general 
obligations of a lead agency.
    Sec.  601.6 Resolving disputes over Lead Agency status. The section 
includes a dispute resolution provision for circumstances when there is 
a disagreement over which agency serves as the lead.
    Sec.  601.7 Cooperating Agencies. This section lists the 
obligations of NCPC when it serves as a cooperating agency and requires 
non-federal agencies to comply with the same obligations when NCPC 
serves as lead agency.
    Subpart C--NEPA Submission Schedules. This subpart establishes the 
NEPA submission schedule for applications reviewed by the Commission 
pursuant to the Planning Act and the Commemorative Works Act.
    Sec.  601.8 NEPA Submission schedule for applications governed by 
the National Capital Planning Act. This section establishes a revised 
NEPA submission schedule as follows: Initiation of scoping at the time 
of concept review; issuance of a draft environmental document (EA or 
EIS) at the time of preliminary review; and issuance of a final 
environmental document and final determination (FONSI or ROD) at the 
time of final review. The section also addresses the NEPA process to be 
undertaken by NCPC as the lead agency when emergency circumstances 
exist and application of a CATEX is not possible.
    Sec.  601.9 NEPA submission schedule for applications governed by 
the Commemorative Works Act. This section establishes a new NEPA 
submission schedule as follows: Commencement of the NEPA process at the 
time of concept site and concept design review; issuance of a draft 
environmental document for public review at the time of preliminary 
approval of a site and design; and issuance of a final environmental 
document and a final determination (FONSI or ROD) at the time of final 
site and design review.
    Subpart D--Initiating the NEPA Process. This subpart describes the 
characteristics of Commission actions eligible for a CATX, lists the 
extraordinary circumstances that may negate the application of a CATEX, 
and lists NCPC's CATEXs.
    Sec.  601.10 Characteristics of Commission actions eligible for a 
Categorical Exclusion. This section lists four types of actions the 
generally qualify for application of a CATEX:
    Sec.  601.11 Extraordinary Circumstances. This section list ten 
extraordinary circumstances that may negate NCPC's application of a 
CATEX. Current regulations specify only five extraordinary 
circumstances.
    Sec.  601.12 National Capital Planning Commission Categorical 
Exclusions. This section lists ten categorical exclusions available for 
use by NCPC. It includes a few new, but minor types of projects 
eligible for categorical exclusion and removes some existing CATEX 
based on old, antiquated authorities.
    Subpart E--Environmental Assessments. This subpart identifies the 
characteristics of Commission actions eligible for an EA; the specific 
types of Commission actions eligible for an EA; the contents, process 
for preparing, and process for adopting an EA; the process for closing 
out the EA process; and the requirements for determining when a 
supplemental EA should be prepared.
    Sec.  601.13 Characteristics of Commission actions eligible for and 
Environmental Assessment. This section lists four characteristics that 
generally render a Commission action eligible for an EA.
    Sec.  601.14 Commission actions generally eligible for an 
Environmental Assessment. This section lists five specific actions of 
the Commission which comply with the criteria listed in Sec.  601.13 
above and, therefore, qualify for preparation of an EA.
    Sec.  601.15 Preparing an Environmental Assessment. This section 
provides general guidance on the contents of an EA and the entities to 
be involved in the preparation of the document. The section also 
authorizes NCPC's Executive Director to undertake a public scoping 
process for an EA if he/she determines it to be appropriate, outlines 
the public scoping process, and authorizes NCPC in its discretion to 
solicit public comment on a draft EA.
    Sec.  601.16 Finding of No Significant Impact. This section directs 
NCPC as the lead agency to prepare a FONSI, if warranted, at the 
conclusion of the EA process. It also provides NCPC the option of 
either co-signing the lead agency's FONSI or preparing its own FONSI 
when NCPC serves as a cooperating agency. The section also specifies 
remedies the Commission can pursue when a lead agency's EA fails to 
support a FONSI.
    Sec.  601.17 Supplemental Environmental Assessments. This section 
establishes when a supplemental EA may be warranted.
    Subpart F--Environmental Impact Statements. This subpart 
establishes the requirement for and timing of an EIS; links the 
requirement for an EIS to the context and intensity of impacts; 
requires use of techniques that minimize the length of an EIS; 
authorizes use of programmatic EISs and tiering; lists the contents of 
an EIS; sets forth the process for preparing an EIS; addresses 
preparation and issuance of a Final EIS; and addresses the preparation, 
and issuance of a ROD.
    Sec.  601.18 Requirement and timing of an Environmental Impact 
Statement. This section requires NCPC preparation of an EIS on behalf 
on non-federal agency applicants, prior to the

[[Page 24572]]

Commission's approval of a major federal action that has the potential 
to significantly affect the quality of the human environment.
    Sec.  601.19 Context, intensity and significance of impacts. This 
section requires the determination on whether an EIS is necessary and 
whether an impact is significant based on the context and intensity of 
a project's impacts. The section discusses the meaning of context and 
intensity and lists the characteristics that render projects 
significant.
    Sec.  601.20 Streamlining Environmental Impact Statements. This 
section requires NCPC to minimize the length of an EIS when NCPC serves 
as the lead agency and lists techniques that can achieve this result.
    Sec.  601.21 Programmatic Environmental Impact Statements and 
tiering. This section authorizes use of a PEA and PEIS to assess the 
impacts of proposed plans and projects when there is uncertainty 
regarding the timing, the location, and the environmental impacts of 
subsequent implementing actions. When NCPC proceeds with a specific 
action, it authorizes the use of tiering or working from where the PEA 
or PEIS left off to define specific issues associated with the proposed 
action.
    Sec.  601.22 Contents of an Environmental Impact Statement. This 
section enumerates the specific sections and contents that must be 
included in an EIS when NCPC is lead agency.
    Sec.  601.23 The Environmental Impact Statement process. This 
section specifies the parties that must be included in the draft EIS 
preparation process, the process to follow for determining the scope of 
an EIS, and the process for obtaining public comment when NCPC is lead 
agency.
    Sec.  601.24 Final Environmental Impact Statement. This section 
provides for the preparation of a final EIS responsive to public 
comments and provides for a forty five-day Commission-sponsored review 
period of the final EIS before the Commission takes action when NCPC is 
lead agency.
    Sec.  601.25 Record of Decision. This section requires the 
preparation of a ROD stating the Commission's decision and any 
conservation or mitigation measures required by the Commission when 
NCPC is lead agency. It also lists the required contents of a ROD. This 
section enables NCPC to co-sign the ROD of the lead agency if NCPC 
serves as a cooperating agency and concurs with the applicant's ROD.
    Sec.  601.26 Supplemental Environmental Impact Statement. This 
section specifies a supplemental EIS may be warranted if the original 
document is more than five years old and changed project specifications 
or new circumstances or information exist.
    Sec.  601.27 Legislative Environmental Impact Statement. This 
sections requires NCPC to prepare an EIS when initiating the submission 
of draft legislation to Congress.
    Subpart G--Dispute Resolution. This subpart sets forth a mechanism 
for dispute resolution.
    Sec.  601.28 Dispute resolution. Unless a specific dispute 
resolution is invoked elsewhere in the Policies and Procedures, this 
section requires disputes arising under the Policies and Procedures to 
be resolved through interagency negotiations starting at the working 
levels and rising to the level necessary to resolve the dispute. If 
disputes cannot besettled through interagency negotiations, the parties 
are required to engage in mediation.

Compliance With Laws and Executive Orders

1. Executive Orders 12866 and 13563

    By Memorandum dated October 12, 1993 from Sally Katzen, 
Administrator, Office of Information and Regulatory Affairs (OIRA) to 
Heads of Executive Departments and Agencies, and Independent Agencies, 
OMB rendered the NCPC exempt from the requirements of Executive Order 
12866 (See, Appendix A of cited Memorandum). Nonetheless, NCPC 
endeavors to adhere to the provisions of Executive Orders and developed 
this proposed rule in a manner consistent with the requirements of 
Executive Order 13563. NCPC worked closely with CEQ on the derivation 
of the proposed Policies and Procedures and intends to work with the 
land-holding agencies and certain non-federal agencies impacted by 
these during the public comment period.

2. Executive Order 13771

    By virtue of its exemption from the requirements of EO 12866, NCPC 
is exemption from this executive order. NCPC confirmed this fact with 
OIRA.

3. Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), the NCPC certifies that the proposed rule will not have a 
significant economic effect on a substantialnumber of small entities.

4. Small Business Regulatory Enforcement Fairness Act

    This is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. It does not have an annual effect 
on the economy of $100 million or more; will not cause a major increase 
in costs for individuals, various levels of governments or various 
regions; and does not have a significant adverse effect on completion, 
employment, investment, productivity, innovation or the competitiveness 
of US enterprises with foreign enterprises.

5. Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

    A statement regarding the Unfunded Mandates Reform Act is not 
required. The proposed rule neither imposes an unfunded mandate of more 
than $100 million per year nor imposes a significant or unique effect 
on State, local or tribal governments or the private sector.

6. Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment. The proposed rule does not substantially 
and directly affect the relationship between the Federal and state 
governments.

7. Civil Justice Reform (Executive Order 12988)

    The General Counsel of NCPC has determined that the proposed rule 
does not unduly burden the judicial system and meets the requirements 
of Executive Order 12988 3(a) and 3(b)(2).

8. Paperwork Reduction Act

    The proposed rule does not contain information collection 
requirements, and it does not require a submission to the Office of 
Management and Budget under the Paperwork Reduction Act.

9. National Environmental Policy Act

    The proposed rule is of an administrative nature, and its adoption 
does not constitute a major federal action significantly affecting the 
quality of the human environment. NCPC's adoption of the proposed rule 
will have minimal or no effect on the environment; impose no 
significant change to existing environmental conditions; and will have 
no cumulative environmental impacts.

10. Clarity of the Regulation

    Executive Order 12866, Executive Order 12988, and the Presidential 
Memorandum of June 1, 1998 requires the NCPC to write all rules in 
plain language. NCPC maintains the proposed rule meets this 
requirement. Those individuals reviewing the proposed rule who believe 
otherwise should submit specific comments to the addresses noted above 
recommending revised language for those provision or portions

[[Page 24573]]

thereof where they believe compliance is lacking.

11. Public Availability of Comments

    Be advised that personal information such as name, address, phone 
number electronic address, or other identifying personal information 
contained in a comment may be made publically available. Individuals 
may ask NCPC to withhold the personal information in their comment, but 
there is no guarantee the agency can do so.

List of Subjects in 1 CFR Part 601

    Environmental Policies and Procedures.

    For the reasons stated in the preamble, the National Capital 
Planning Commission proposes to establish 1 CFR chapter VI, consisting 
of part 601, to read as follows:

CHAPTER VI--NATIONAL CAPITAL PLANNING COMMISSION

PART 601--ENVIRONMENTAL POLICIES AND PROCEDURES

Subpart A--General
Sec.
601.1 Purpose.
601.2 Policies.
601.3 Definitions.
Subpart B--Lead and Cooperating Agencies
601.4 Designation of Lead Agency.
601.5 Lead Agency obligations.
601.6 Resolving disputes over Lead Agency status.
601.7 Cooperating Agencies.
Subpart C--NEPA Submission Schedules
601.8 NEPA submission schedule for applications governed by the 
National Capital Planning Act.
601.9 NEPA submission schedule for applications governed by the 
Commemorative Works Act.
Subpart D--Initiating the NEPA Process
601.10 Characteristics of Commission actions eligible for a 
Categorical Exclusion.
601.11 Extraordinary Circumstances.
601.12 National Capital Planning Commission Categorical Exclusions.
Subpart E--Environmental Assessments
601.13 Characteristics of Commission actions eligible for an 
Environmental Assessment.
601.14 Commission actions generally eligible for an Environmental 
Assessment.
601.15 Process for preparing an Environmental Assessment.
601.16 Finding of No Significant Impact.
601.17 Supplemental Environmental Assessments.
Subpart F--Environmental Impact Statements
601.18 Requirement for and timing of an Environmental Impact 
Statement.
601.19 Context, intensity, and significance of impacts.
601.20 Streamlining Environmental Impact Statements.
601.21 Programmatic Environmental Impact Statements and tiering.
601.22 Contents of an Environmental Impact Statement.
601.23 The Environmental Impact Statement process.
601.24 Final Environmental Impact Statement.
601.25 Record of Decision.
601.26 Supplemental Environmental Impact Statement.
601.27 Legislative Environmental Impact Statement.
Subpart G--Dispute Resolution
601.28 Dispute resolution.
601.29 [Reserved]


    Authority:  40 CFR 1507.3.

Subpart A--General


Sec.  601.1   Purpose.

    This part establishes rules that supplement the Council on 
Environmental Quality's (CEQ) National Environmental Policy Act (NEPA) 
regulations that the National Capital Planning Commission (NCPC or 
Commission) and its applicants shall follow to ensure:
    (a) Compliance with NEPA, as amended (42 U.S.C. 4321 et seq.) and 
CEQ regulations for implementing the procedural provisions of NEPA (40 
CFR parts 1501through 1508).
    (b) Compliance with other laws, regulations, and Executive Orders 
identified by NCPC as applicable to a particular application.


Sec.  601.2   Policies.

    Consistent with 40 CFR 1500.1 and 1500.2, it shall be the policy of 
the NCPC to:
    (a) Comply with the procedures and policies of NEPA and other 
related laws, regulations, and orders applicable to Commission actions.
    (b) Provide applicants sufficient guidance to ensure plans and 
projects comply with the rules of this part and other laws, 
regulations, and orders applicable to Commission actions.
    (c) Integrate NEPA into its decision-making process at the earliest 
possible stage.
    (d) Integrate the requirements of NEPA and other planning and 
environmental reviews required by law including, without limitation, 
the National Historic Preservation Act, 54U.S.C. 306108 (NHPA), to 
ensure all such procedures run concurrently.
    (e) Use the NEPA process to identify and assess the reasonable 
alternatives to proposed actions that will avoid or minimize adverse 
effects on the quality of the human environment in the National Capital 
Region.
    (f) Use all practicable means to protect, restore, and enhance the 
quality of the human environment including built and socioeconomic 
environments and historic properties within the National Capital 
Region.
    (g) Streamline the NEPA process and Environmental Impact Statements 
(EIS) to the maximum extent possible.
    (h) Use the NEPA process to foster meaningful public involvement in 
NCPC decisions.


Sec.  601.3   Definitions.

    For purposes of this part, the following definitions shall apply:
    Administrative Record means a compilation of all materials (written 
and electronic) that were before the agency at the time it made its 
final decision. An Administrative Record documents an agency's 
decision-making process and the basis for the decision.
    Categorical Exclusion or CATEX means, as defined by 40 CFR 1508.4, 
a category of actions which do not individually or cumulatively have a 
significant effect on the human environment and which have been found 
to have no such effect in procedures adopted by a federal agency (NCPC) 
in implementation of CEQ's regulations and for which, therefore, 
neither an Environmental Assessment (EA) nor an EIS is required.
    Central Area means the geographic area in the District of Columbia 
comprised of the Shaw School and Downtown Urban Renewal Areas or such 
other area as the Districtof Columbia and NCPC shall subsequently 
jointly determine.
    Chairman means the Chairman of the National Capital Planning 
Commission appointed by the President, pursuant to 40 U.S.C. 8711(c).
    Commemorative Works Act or CWA means the federal law codified at 40 
U.S.C. 8901 et seq. that sets forth the requirements for the location 
and development of new memorials and monuments on land under the 
jurisdiction of the National Park Service (NPS) or the General Services 
Administration (GSA) in the District of Columbia and its environs.
    Commission means the National Capital Planning Commission created 
by 40 U.S.C. 8711.
    Comprehensive Plan means The Comprehensive Plan for the National 
Capital: Federal Elements prepared and

[[Page 24574]]

adopted by the Commission pursuant to 40 U.S.C. 8721(a).
    Cooperating Agency means, as defined in 40 CFR 1508.5, any Federal 
Agency other than a Lead Agency and a Non-federal Agency that has 
jurisdiction by law or special expertise with respect to a proposal (or 
reasonable alternative) for legislation or other major action 
significantly affecting the quality of the human environment; a state 
or local agency of similar qualifications; or when the effects are on a 
reservation, an Indian Tribe when agreed to by the Lead Agency.
    Cumulative Impact means, as defined in 40 CFR 1508.7, the impact on 
the environment that results from the incremental impact of an action 
when added to other past, present, and reasonably foreseeable future 
actions regardless of what agency (federal or non-federal) or person 
undertakes such other actions. Cumulative impacts can result from 
individually minor, but collectively significant, actions taking place 
over a period of time.
    Emergency Circumstances means an unexpected, serious occurrence or 
situation requiring immediate attention to protect the lives and safety 
of the public and protect property and ecological resources and 
functions from imminent harm.
    Environmental Assessment or EA means, as defined in 40 CFR 1508.9, 
a concise document for which a federal agency is responsible that 
serves to briefly provide sufficient evidence and analysis for 
determining whether to prepare an EIS or FONSI; aid an agency's 
compliance with NEPA when no EIS is necessary; facilitate preparation 
of an EIS when one is necessary; and includes a brief discussion of the 
need for the proposal, alternatives as required by section 102(2)(E) of 
NEPA, the environmental impacts of the proposed action and 
alternatives, and a listing of agencies and persons consulted.
    Environmental Impact Statement or EIS means, as defined in 40 CFR 
1508.11, a detailed written statement as required by 42 U.S.C. 
4332(2)(C).
    Environs means the territory surrounding the District of Columbia 
included in the National Capital Region pursuant to 40 U.S.C. 
8702(a)(1).
    Executive Director means the Executive Director employed by the 
National Capital Planning Commission pursuant to 40 U.S.C. 8711(d).
    Executive Director's Recommendation or EDR means a concise written 
report and recommendation prepared by NCPC staff under the direction of 
NCPC's Executive Director regarding a proposed action and transmitted 
to the Commission for its consideration.
    Extraordinary Circumstances means special circumstances that when 
present may negate an agency's ability to categorically exclude a 
project and may require an agency to undertake further NEPA review.
    Federal Agency means the executive agencies of the federal 
government as defined in 5 U.S.C. 105.
    Finding of No Significant Impact or FONSI means, as defined at 40 
CFR 1508.13, a document prepared by NCPC or a Federal Agency applicant 
that briefly presents the reasons why an action, not otherwise excluded 
(40 CFR 1508.4), will not have a significant effect on the human 
environment and for which an EIS will not be prepared. It shall include 
the EA or a summary of it and shall note any other EAs or EISs related 
to it (40 CFR 1501.7(a)(5)). If the EA is included in the FONSI, the 
FONSI need not repeat any of the discussion in the EA but may be 
incorporated by reference.
    Lead Agency means, as defined in 40 CFR 1508.16, the agency or 
agencies preparing or having primary responsibility for preparing an EA 
or an EIS.
    Memorandum of Understanding or MOU means for purposes of 
implementing NEPA, a written agreement entered into between a Lead, Co-
lead and a Cooperating Agency to facilitate implementation of NEPA and 
preparation of the requisite environmental documentation. A MOU can be 
written at a programmatic level to apply to all projects involving NCPC 
and a Federal or Non-Federal Agency applicant or on a project-by-
project basis. A MOU as defined here shall be in addition to and not 
preclude MOUs prepared by NCPC and Federal agencies for other purposes.
    Mitigation means, as defined in 40 CFR 1508.20, avoiding an impact 
altogether by not taking a certain action or parts of an action; 
minimizing impacts by limiting the degree or magnitude of the action 
and its implementation; rectifying the impact by repairing, 
rehabilitating, or restoring the affected environment; reducing or 
eliminating the impact over time by preservation and maintenance 
operations during the life of the action; and compensating for the 
impact by replacing or providing substitute resources or environments.
    Monumental Core means the general area encompassed by the Capitol 
grounds, the Mall, the Washington Monument grounds, the White House 
grounds, the Ellipse, West Potomac Park, East Potomac Park, the 
Southwest Federal Center, the Federal Triangle area, President's Park, 
the Northwest Rectangle, Arlington Cemetery and the Pentagon area, and 
Joint Base Myer-Henderson Hall.
    National Capital Planning Act means the July 1952 legislative 
enactment, codified at 40 U.S.C. 8701 et seq., that created the present 
day National Capital Planning Commission and conferred authority upon 
it to serve as the planning and zoning authority for the federal 
government.
    National Capital Region means, as defined in 40 U.S.C. 8702(2), the 
District of Columbia; Montgomery and Prince Georges Counties in 
Maryland; Arlington, Fairfax, Loudon, and Prince William Counties in 
Virginia; and all cities in Maryland or Virginia in the geographic area 
bounded by the outer boundaries of the combined area of the counties 
listed.
    NEPA Document or Document means a Categorical Exclusion 
determination, an EA, or an EIS.
    Non-federal Agency means those applicants outside the definition of 
Federal Agency that prepare plans for or undertake projects on federal 
land and include, without limitation, the Smithsonian Institution, the 
John F. Kennedy Center for the Performing Arts, the National Gallery of 
Art, the United States Institute of Peace, the Government of the 
District of Columbia, the Maryland National Capital Parks and Planning 
Commission; and private parties undertaking development on federal 
land.
    Notice of Availability or NOA means a public notice or other means 
of public communication that announces the availability of an EA or an 
EIS for public review.
    Notice of Intent or NOI means, as defined in 40 CFR 1508.22, a 
notice published in the Federal Register that an EIS will be prepared 
and considered. The notice shall briefly describe the proposed action 
and possible alternatives; describe the agency's proposed Public 
Scoping process including whether, when, and where any Public Scoping 
meeting will be held; and state the name and address of a person within 
the agency who can answer questions about the proposed action and the 
EIS. For purposes of NCPC implementation of NEPA, NCPC may determine, 
at its sole discretion, to publish an NOI that an EA will be prepared 
and considered.
    Programmatic NEPA Review means a broad or high level NEPA review 
that assesses the environmental impacts of proposed policies, plans or 
programs, or projects for which subsequent project or site-specific 
NEPA analysis will be

[[Page 24575]]

conducted. A Programmatic NEPA Review utilizes a tiering approach.
    Record of Decision or ROD means a concise public record of an 
agency's decision in cases requiring an EIS that is prepared in 
accordance with 40 CFR 1505.2.
    Scope means, as defined in 40 U.S.C. 1508.25, the range of actions 
(connected, cumulative and similar); alternatives (no action, other 
reasonable courses of action; and mitigation measures not included in 
the proposed action); and impacts (direct, indirect and cumulative) 
considered in an EIS or an EA. The process of defining and determining 
the scope of issues to be addressed in an EIS or EA with public 
involvement shall be referred to as Public Scoping. Internal scoping 
activities shall be referred to by the word scoping without 
capitalization.
    Submission Guidelines means the formally-adopted document which 
describes the application process and application requirements for 
projects requiring review by the Commission.
    Tiering means, as defined in 40 CFR 1508.28, an approach where 
Federal Agency applicants, NCPC on behalf of Non-federal Agency 
applicants, or NCPC for its own projects initially consider the broad, 
general impacts of a proposed program, plan, policy, or large scale 
project--or at the early stage of a phased proposal--and then conduct 
subsequent narrower, decision focused reviews.

Subpart B--Lead and Cooperating Agencies


Sec.  601.4   Designation of Lead Agency.

    (a) A Federal Agency applicant shall serve as the Lead Agency and 
prepare an EA or an EIS for:
    (1) An application that requires Commission approval; and
    (2) An application submitted for action on a master plan that 
includes future projects that require Commission approval; provided 
that:
    (i) The applicant intends to submit individual projects covered by 
the master plan to the Commission within five years of the date of 
Commission action on the master plan; and
    (ii) The applicant intends to use the master plan EA or EIS to 
satisfy its NEPA obligation for specific projects referenced in the 
master plan.
    (b) At the sole discretion of the Executive Director, and unless 
determined otherwise, NCPC shall serve as Lead Agency and prepare and 
EA or and EIS for:
    (1) An application submitted by a Non-federal Agency that requires 
Commission approval;
    (2) An application submitted by a Non-federal Agency for action on 
a master plan that includes future projects that require Commission 
approval; provided that:
    (i) The Non-federal Agency applicant intends to submit individual 
projects covered by the master plan to the Commission within five years 
of the date of Commission action on the master plan; and
    (ii) The Non-federal Agency applicant intends to use the master 
plan EA or EIS to satisfy its NEPA obligation for a specific project 
referenced in the master plan; and
    (3) An application for approval of land acquisitions undertaken 
pursuant to 40 U.S.C. 8731-8732.


Sec.  601.5   Lead Agency obligations.

    (a) The obligations of a Federal Agency applicant designated as the 
Lead Agency in accordance with Sec.  601.4(a) shall include, without 
limitation, the following:
    (1) Act as Lead Agency as defined in 40 CFR 1501.5 for the NEPA 
process.
    (2) Designate NCPC to participate as a Co-lead or Cooperating 
Agency and consult with Commission staff as early as possible in the 
planning process to obtain guidance with respect to the goals, 
objectives, standards, purpose, need, and alternatives for the NEPA 
analysis.
    (3) Invite affected federal, state, regional and local agencies, 
and other potentially interested parties to participate as a 
Cooperating Agency in the NEPA process.
    (4) Consult with the affected agencies and entities as early as 
possible in the planning process to obtain guidance on the goals, 
objectives, standards, purpose, need, and alternatives for the NEPA 
analysis.
    (5) Work with Cooperating Agencies and stakeholders, e.g., those 
with a direct stake in the outcome, in the following manner:
    (i) Keep them informed on the project schedule and substantive 
matters; and
    (ii) Allow them an opportunity to review and comment within 
reasonable time frames on, without limitation, Public Scoping notices; 
technical reports; public materials (including responses to comments 
received from the public); potential mitigation measures; the draft EA 
or EIS; and the draft FONSI or ROD.
    (6) Prepare the appropriate NEPA Document consistent with the 
applicant's NEPA regulations, the requirements of this part, and CEQ 
regulations.
    (7) Determine in its NEPA Document whether an action will have an 
adverse environmental impact or would limit the choice of reasonable 
alternatives under 40 CFR 1505.1(e) and take appropriate action to 
ensure that the objectives and procedures of NEPA are achieved.
    (8) Prepare, make available for public review, and issue a FONSI or 
ROD.
    (9) Ensure that the draft and final EIS comply with the 
requirements of 40 CFR 1506.5(c) and include a disclosure statement 
executed by any contractor (or subcontractor) under contract to prepare 
the EIS document and that the disclosure appears as an appendix to the 
EIS.
    (10) Compile, maintain, and produce the Administrative Record.
    (11) Provide periodic reports on implementation of Mitigation 
measures to NCPC and other Cooperating Parties consistent with a 
schedule established in the NEPA Document.
    (12) Re-evaluate and update NEPA documents that are five or more 
years old as measured from the time of their adoption when either or 
both of the following criteria apply:
    (i) There are substantial changes to the proposed action that are 
relevant to environmental concerns; and
    (ii) There are significant new circumstances or information that 
are relevant to environmental concerns and have a bearing on the 
proposed action or its impacts.
    (13) Consult with NCPC on the outcome of the re-evaluation of its 
NEPA Document; provided that the NCPC reserves the right to make the 
final determination as to whether a Lead Agency's NEPA document 
requires updating.
    (b) When NCPC serves as Lead Agency in accordance with Sec.  
601.4(b), in addition to the obligations listed in paragraphs (a)(1) 
through (12) of this section, NCPC may:
    (1) Ask applicants, at its sole discretion, to enter into a MOU. 
The MOU may be prepared as a programmatic MOU that addresses a uniform 
approach for the treatment of all applications from a particular 
applicant or address a specific application. The request to enter into 
a project specific MOU shall be made after a determination is made as 
to theinability to utilize a CATEX. A MOU shall specify, without 
limitation, project information; roles and responsibilities; project 
timelines and schedules; principal contacts and contact information; 
and a mechanism for resolving disputes.
    (2) Request assistance from a Non-federal Agency applicant with the 
preparation of a NEPA Document. If requested by NCPC, the assistance 
shall

[[Page 24576]]

include the provision of funding for a contractor retained by NCPC to 
prepare the requisite NEPA document. When Non-federal Agency financial 
assistance is requested, NCPC shall invite the Non-federal Agency 
applicant to participate in the procurement process to select the 
contractor.
    (3) Require Non-federal Agency applicants to submit periodic 
reports on implementation of Mitigation measures to NCPC consistent 
with a schedule established in the NEPA Document.


Sec.  601.6   Resolving disputes over Lead Agency status.

    (a) In the event of a dispute with a Federal Agency applicant or a 
Non-federal Agency applicant over Lead Agency status, the parties shall 
use their best efforts to cooperatively resolve disputes at the working 
levels of their respective agencies and, if necessary, by escalating 
such disputes within their respective agencies.
    (b) If internal resolution at higher agency levels proves 
unsuccessful, at NCPC's sole discretion, one of the following actions 
shall be pursued: the parties shall request CEQ's determination on 
which agency shall serve as Lead, NCPC shall prepare its own NEPA 
Document, or NCPC shall decline to take action on the underlying 
application.
    (c) Disputes other than those relating to the designation of Lead 
Agency status or Cooperating Status as described in Sec.  601.7(b), 
shall be governed by the requirements of subpart G of this part.


Sec.  601.7   Cooperating Agencies.

    (a) When a Federal Agency applicant serves as the Lead Agency, NCPC 
shall act as a Cooperating Agency. As a Cooperating Agency, NCPC shall, 
without limitation, undertake the following:
    (1) Act as a Cooperating Agency as described in 40 CFR 1501.6.
    (2) Assist in the preparation of and sign a MOU if requested by the 
Lead Agency. At the lead agency's discretion, the MOU may be prepared 
as a programmatic MOU that addresses a uniform approach for the 
treatment of all applications where NCPC serves as a cooperating agency 
or address a specific application. The request to enter into a project 
specific MOU shall be made after a determination is made as to the 
inability to utilize a CATEX.
    (3) Participate in the NEPA process by providing comprehensive, 
timely reviews of and comments on key NEPA materials including, without 
limitation, Public Scoping notices; technical reports; documents 
(including responses to comments received from the public); the draft 
and final EA or EIS; and the FONSI or ROD.
    (4) Supply available data, assessments, and other information that 
may be helpful in the preparation of the NEPA Document or the 
Administrative Record in a timely manner.
    (5) Make an independent evaluation of the Federal Agency 
applicant's NEPA Document and take responsibility for the scope and 
contents of the EIS or EA when it is sufficient as required by 40 CFR 
1506.5.
    (6) Prepare and sign a ROD or FONSI or, if NCPC concurs with the 
contents of the document, co-sign the Federal Agency's ROD or FONSI.
    (7) Provide documentation as requested and as needed by the Lead 
Agency for the Administrative Record.
    (b) In the event a Federal Agency applicant fails to allow NCPC to 
participate in a meaningful manner as a Cooperating Agency, the parties 
shall agree to use their best efforts to cooperatively resolve the 
issue at the working levels of their respective agencies, and, if 
necessary, by escalating the issue within their respective agencies. If 
internal resolution at higher agency levels is unsuccessful, NCPC at 
its sole discretion shall either require the parties to seek mediation, 
prepare its own NEPA Document either as a stand-alone document or a 
supplement to the Federal Agency applicant's NEPA Document, or take no 
action on the underlying application.
    (c) When NCPC serves as Lead Agency on behalf of Non-federal Agency 
applicant, the Non-federal Agency applicant shall serve as a 
Cooperating Agency and comply with the requirements of paragraphs 
(a)(1) through (4) and (7) of this section. Non-federal Agency 
applicants shall extend all assistance necessary to facilitate NCPC's 
compliance with NEPA including the provision of funding for consultant 
services if requested.

Subpart C--NEPA Submission Schedules


Sec.  601.8   NEPA submission schedule for applications governed by the 
National Capital Planning Act.

    (a) Federal Agency and Non-federal Agency applicants shall comply 
with NEPA for the following types of projects:
    (1) Projects requiring Commission approval; and
    (2) Master plans requiring Commission action with future projects 
requiring subsequent Commission approval; provided that:
    (i) The applicant intends to submit individual projects depicted in 
the master plan to the Commission within five years of the date of 
Commission action on the master plan; and
    (ii) The applicant intends to use the master plan EA or EIS to 
satisfy its NEPA obligation for specific projects referenced in the 
master plan.
    (b) When Federal Agency and Non-federal Agency applicants submit 
projects of the type described in paragraph (a) of this section, the 
applicant shall submit the NEPA documentation timed to coincide with 
the Commission's review stages as set forth in paragraphs (c) through 
(f) of this section.
    (c) Concept review. If NCPC's Submission Guidelines require review 
at the concept stage, the NEPA Public Scoping process shall have been 
initiated before the applicant submits an application for concept 
review. Available NEPA documentation, including a CATEX determination, 
shall be included in the application to facilitate effective Commission 
concept review.
    (d) Preliminary review. An applicant shall have issued or published 
its Draft NEPA Document before the applicant submits an application for 
preliminary review. The NEPA information shall be provided to the 
Commission to facilitate the Commission's preliminary review and the 
provision of meaningful Commission comments and direction.
    (e) Final review. The responsible Lead Agency shall complete and 
sign the final determination ROD or a FONSI) resulting from the NEPA 
Document before the applicant submits an application for final review. 
If NCPC is not the Lead Agency for NEPA, it shall at the time of final 
review undertake the steps outlined in Sec.  601.7(a)(5) and (6). If 
applicable, the Section 106 consultation process required by the NHPA 
shall also be complete at this stage.
    (f) Deviations from the submission schedule for emergency 
circumstances. (1) This paragraph (f) applies when the following three 
conditions exist:
    (i) NCPC is the Lead Agency;
    (ii) Emergency Circumstances exist; and
    (iii) An Extraordinary Circumstance as set forth in Sec.  601.11 is 
present that precludes use of a CATEX.
    (2) When the three conditions described in paragraphs (f)(1)(i) 
through (iii) of this section exist, the Executive Director shall make 
a determination as to whether the CATEX can or cannot be applied as 
soon as practicable. If the Executive Director determines a CATEX may 
not be applied, he/she shall take one of the steps indicated in 
paragraph (f)(2)(i) or (ii) of this section.

[[Page 24577]]

    (i) When Emergency Circumstances render it necessary to take an 
action that requires an EA before the EA can be competed, the Executive 
Director shall develop alternative arrangements focused on minimizing 
environmental impacts of the proposed action. These steps shall follow 
those normally undertaken for an EA, to include, to the maximum extent 
practicable, preparation of a document with appropriate content, 
interagency coordination, and public notification and involvement. The 
Commission shall grant approval for the alternative arrangement. At the 
earliest opportunity, the Executive Director shall advise CEQ of the 
alternative arrangement.
    (ii) Where Emergency Circumstances make it necessary for the 
Commission to take an action with significant environmental impacts 
without observing the rules of this part and CEQ's regulations, the 
Executive Director shall advise the Commission of the situation. 
Thereafter, as soon as practicable, the Executive director shall 
consult with CEQ regarding alternative arrangements for complying with 
NEPA.


Sec.  601.9   NEPA submission schedule for applications governed by the 
Commemorative Works Act.

    (a) When, pursuant to the Commemorative Works Act, NPS or GSA 
submits an application to the Commission for approval of a site and 
design for a commemorative work, the applicant shall be required to 
comply with NEPA and submit the NEPA documentation timed to coincide 
with the Commission's review stages as set forth in paragraphs (b) 
through (e) of this section.
    (b) Concept site review. (1) If NCPC's Submission Guidelines 
require concept site review, the NEPA Scoping Process shall have been 
initiated before NPS or GSA submits an application to the Commission 
for concept site review. Available NEPA documentation for all concept 
sites shall be included in the application to facilitate effective 
Commission concept review.
    (2) The Commission shall provide comments to NPS or GSA on the 
multiple sites to assist the applicant in selecting a preferred site.
    (c) Concept design review for preferred sites. (1) If NCPC's 
Submission Guidelines require concept design review, the NEPA Public 
Scoping Process shall have been initiated before NPS or GSA submits an 
application to the Commission for a concept design review. Available 
NEPA documentation shall be included in the application to facilitate 
effective Commission concept review.
    (2) The Commission shall provide comments to NPS or GSA on the 
preferred site(s) and the concept designs for each site to facilitate 
selection of a preferred site and refinement of the memorial design for 
that site. The Commission may impose conditions on or establish 
guidelines for the applicant to follow in preparing its preliminary and 
final commemorative work design to avoid, minimize or mitigate 
environmental impacts including adverse effects on historic properties.
    (d) Preliminary site and design review. (1) NPS or GSA shall have 
issued or published its Draft NEPA Document for the site selection 
process and the memorial design and shall have initiated the requisite 
public comment period before the applicant submits an application for 
preliminary site and design approval. The NEPA information shall be 
provided to the Commission to facilitate the Commission's preliminary 
review and the provision of meaningful Commission comments and 
directions.
    (2) The Commission shall take an appropriate action on the 
preferred site and preliminary design and provide comments to the 
applicant on the preliminary design to assist the applicant's 
preparation of a final design.
    (e) Final site and design review. The final environmental 
determination (ROD or FONSI) applicable to both the site selection and 
memorial design shall be completed and signed by NPS or GSA before the 
applicant submits an application for final review. NCPC shall have 
either co-signed the NPS or GSA ROD or FONSI or prepared and signed its 
own independent document. If applicable, the Section 106 consultation 
process required by the NHPA shall also be complete at this stage.

Subpart D--Initiating the NEPA Process


Sec.  601.10   Characteristics of Commission actions eligible for a 
Categorical Exclusion.

    (a) A categorical exclusion is a type of action that does not 
individually or cumulatively have a significant effect on the human 
environment and which has been found to have no such effect by NCPC.
    (b) Actions that generally qualify for application of a categorical 
exclusion and do not require either an EA or an EIS exhibit the 
following characteristics:
    (1) Minimal or no effect on the human environment;
    (2) No significant change to existing environmental conditions;
    (3) No significant cumulative environmental impacts; and
    (4) Similarity to actions previously assessed in an EA concluding 
in a FONSI and monitored to confirm the FONSI.


Sec.  601.11   Extraordinary Circumstances.

    (a) Before applying a CATEX listed in Sec.  601.12, the Executive 
Director shall consider whether a project or plan requires additional 
environmental review or analysis due to the existence of Extraordinary 
Circumstances. If any of the Extraordinary Circumstances listed in 
paragraphs (b)(1) through (10) of this section are present, the 
Executive Director shall direct staff to undertake a preliminary 
analysis to determine if the presence of the Extraordinary 
Circumstances negates the application of a CATEX. If the preliminary 
analysis determines application of a CATEX is not appropriate, the 
Executive Director shall see that the proper NEPA Document is prepared 
and made available to the Commission before the Commission takes action 
on the matter. If the Extraordinary Circumstance does not negate 
application of a CATEX, the appropriate CATEX shall be applied and its 
application documented for the record.
    (b) Extraordinary Circumstances that may negate the application of 
a CATEX include:
    (1) A reasonable likelihood of significant impact on public health 
or safety.
    (2) A reasonable likelihood of significant environmental impacts on 
sensitive resources unless the impact has been resolved through another 
processes to include, without limitation, Section 106 of the NHPA. 
Environmentally sensitive resources include without limitation:
    (i) Proposed federally listed, threatened or endangered species or 
their designated critical habitats.
    (ii) Properties listed or eligible for listing on the National 
Register of Historic Places.
    (iii) Areas having special designation or recognition based on 
federal law or an Executive Order, to include without limitation, 
National Historic Landmarks, floodplains, wetlands, and National Parks.
    (iv) Cultural, scientific or historic resources.
    (3) A reasonable likelihood of effects on the environment that are 
risky, highly uncertain, or unique.
    (4) A reasonable likelihood of violating an Executive Order, or 
federal, state or local law or requirements imposed for the protection 
of the environment.
    (5) A reasonable likelihood of causing a significant increase in 
surface

[[Page 24578]]

transportation congestion, disruption of mass transit, and interference 
with pedestrian and bicycle movements.
    (6) A reasonable likelihood of significantly degrading air quality 
or violating air quality control standards under the Clean Air Act (42 
U.S.C. 7401-7671q).
    (7) A reasonable likelihood of significantly impacting water 
quality, public water supply systems, or state or local water quality 
control standards under the Clean Water Act (33 U.S.C. 1251 et seq.) 
and the Safe Drinking Act (42 U.S.C. 300f).
    (8) A reasonable likelihood of a disproportional high and adverse 
effect on low income and minority populations.
    (9) A reasonable likelihood of degrading existing unsatisfactory 
environmental conditions.
    (10) A reasonable likelihood of establishing a precedent for future 
action or making a decision in principle about future actions with 
potentially significant environmental effects.
    (c) The Executive Director shall include in his EDR, or the 
documentation of a Delegated Action, his/her decision to apply or not 
apply a Categorical Exclusion because of Extraordinary Circumstances 
and the rationale for this decision.


Sec.  601.12   National Capital Planning Commission Categorical 
Exclusions.

    Commission actions that may be categorically excluded and normally 
do not require either an EA or an EIS include:
    (a) Approval of the installation or restoration of onsite primary 
or secondary electrical distribution systems including minor solar 
panel arrays.
    (b) Approval of the installation or restoration of minor site 
elements, such as but not limited to identification signs, sidewalks, 
patios, fences, curbs, retaining walls, landscaping, and trail or 
stream improvements. Additional features include water distribution 
lines and sewer lines which involve work that is essentially 
replacement in kind.
    (c) Approval of the installation or restoration of minor building 
elements, such as, but not limited to windows, doors, roofs, building 
signs, and rooftop equipment and green roofs.
    (d) Adoption of a Federal Element of the Comprehensive Plan or 
amendment thereto or broad based policy or feasibility plans prepared 
and adopted by the Commission in response to the Comprehensive Plan.
    (e) Approval of an action proposed by a District of Columbia agency 
which the agency has determined is not a major action significantly 
affecting the quality of the human environment or is designated an 
exclusion in accordance with the requirements and procedures of DC 
Code. 8-109.06 and any regulations adopted to implement the referenced 
statutory provision.
    (f) Approval of changes to highway plans for portions of the 
District of Columbia prepared by the Mayor, pursuant to D.C Code. 9-
103.02, subject to documentation by the District that such plans 
involve no major traffic volume increase, have minimal or no effect on 
the environment, result in no significant change to existing 
environmental conditions, and impose no significant cumulative 
environmental impact associated with the action associated with the 
action as demonstrated in accordance with the requirements and 
procedures of DC Code. 8-109.01 et seq. and any regulations adopted to 
implement the referenced statutory provisions.
    (g) Approval of the sale by the Secretary of the Interior of 
parcels of real estate held by the United States in the District of 
Columbia under the jurisdiction of NPS that are no longer needed for 
public purposes pursuant to 40 U.S.C. 8735. Such an action shall be 
accompanied by a NPS NEPA determination that demonstrates minimal or no 
effect on the environment, no significant change to existing 
environmental conditions, and no significant cumulative environmental 
impact associated with the action.
    (h) Approval of the exchange of parcels of District-owned land, or 
part thereof, for an abutting lot or parcel of land, or part thereof 
pursuant to DC Code. 10-901, when such plans involve minimal or no 
effect on the environment, no significant change to existing 
environmental conditions, and no significant cumulative environmental 
impact associated with the action as demonstrated in accordance with 
the requirements and procedures of DC Code 8-109.01 et seq. and any 
regulations adopted to implement the referenced statutory provisions.
    (i) Approval of the installation of communication antennae on 
federal buildings and co-location of communication antennae on federal 
property consistent with GSA Bulletin FMR D-242, Placement of 
Commercial Antennas on Federal Property.
    (j) Approval of new construction, building expansion, or 
improvements to existing facilities, when:
    (1) The new structure and proposed use are in compliance with local 
planning and zoning and any applicable District of Columbia, state, or 
federal requirements.
    (2) The site and the scale of construction are consistent with 
those of existing adjacent or nearby buildings.
    (3) The proposed use will not substantially increase the number of 
motor vehicles at the Facility.
    (4) There is no evidence of community controversy or other 
environmental issues.
    (k) Approval of transfers of jurisdiction pursuant to 40 U.S.C. 
8421(a) that will not lead to anticipated changes in the use of land 
and that have no potential for environmental impact.
    (l) Approval of a minor modification to a General Development Plan 
applicable to lands acquired pursuant to the Capper-Cramton Act, 46 
Stat. 482 (1930), as amended, when no or minimal environmental impacts 
are anticipated.
    (m) Approval of an action proposed by a Federal Agency applicant 
when such applicant has determined a categorical exclusion set forth in 
its NEPA-implementing procedures applies to the proposed action; 
provided the Executive Director shall review the determination as to 
both the applicability of the exclusion and the absence of any 
extraordinary circumstances.
    (n) Reorganization of NCPC.
    (o) Personnel actions, including, but not limited to, 
investigations; performance reviews; award of personal service 
contracts, promotions, and awards; reductions in force, reassignments 
and relocations; and employee supervision and training.
    (p) Legal activities including, but not limited to, legal advice 
and opinions; litigation or other methods of dispute resolution; and 
procurement of outside legal services.
    (q) Procurement of goods and services, transactions, and other 
types of activities related to the routine and continuing 
administration, management, maintenance and operations of the 
Commission or its facilities.
    (r) Adoption and issuance of rules, directives, official policies, 
guidelines, and publications or recommendations of an educational, 
financial, informational, legal, technical or procedural nature.

Subpart E--Environmental Assessments


Sec.  601.13   Characteristics of Commission actions eligible for an 
Environmental Assessment.

    (a) An EA is a concise document with sufficient information and 
analysis to enable the Executive Director to

[[Page 24579]]

determine whether to issue a FONSI or prepare an EIS.
    (b) Commission actions that generally require an EA exhibit the 
following characteristics:
    (1) Minor but likely insignificant degradation of environmental 
quality;
    (2) Minor but likely insignificant cumulative impact on 
environmental quality; and
    (3) Minor but likely insignificant impact on protected resources.


Sec.  601.14   Commission actions generally eligible for an 
Environmental Assessment.

    Commission actions that typically require preparation of an EA 
include without limitation:
    (a) Approval of final plans for Federal public buildings in the 
District of Columbia, and the provisions for open space in and around 
the same, pursuant to 40 U.S.C. 8722(d) and DC Code 2-1004(c), unless 
such plans meet the criteria of Sec.  601.12(j).
    (b) Approval of final plans for District of Columbia public 
buildings and the open space around them within the Central Area 
pursuant to 40 U.S.C. 8722(e) and DC Code 2-1004(d) unless such plans 
meet the criteria of Sec.  601.12(e) or (j).
    (c) Recommendations to a Federal or District of Columbia agency on 
any master plan or master plan modification submitted to the Commission 
that include proposed future projects that require Commission approval 
pursuant to 40 U.S.C. 8722(d)-(e) and DC Code 2-1004(c)-(d) within a 
five-year timeframe.
    (d) Approval of a final site and design for a commemorative work 
authorized under the Commemorative Works Act pursuant to 40 U.S.C. 
8905.
    (e) Approval of transfers of jurisdiction over properties within 
the District of Columbia owned by the United States or the District 
among or between federal and District authorities, pursuant to 40 
U.S.C. 8124(a), unless such transfers met the criteria of Sec.  
601.12(k).


Sec.  601.15   Process for preparing an Environmental Assessment.

    An EA prepared by NCPC as the Lead Agency for a project requiring 
Commission approval shall comply with the following requirements:
    (a) The EA shall include, without limitation, a brief discussion of 
the proposed action; the need for the proposed action; the 
environmental impacts of the proposed action; the environmental impacts 
of the alternatives considered; Mitigation measures, if necessary; and 
a list of agencies and persons consulted in preparation of the 
assessment.
    (b) The NCPC shall involve, as appropriate, applicants; Federal and 
District of Columbia agencies; the public; and stakeholders (those with 
an economic, cultural, social, or environmental ``stake'' in the 
action) in the preparation of an EA.
    (c) The NCPC, at the sole discretion of the Executive Director, may 
undertake Public Scoping for an action requiring an EA. The Public 
Scoping shall commence thirty calendar days after issuance of a public 
notice of NCPC's intent to prepare an EA. The notice shall include the 
date, time and location of the Public Scoping meeting.
    (d) The NCPC may solicit public review and comment of a Draft EA. 
The public comment period shall be a minimum of thirty calendar days. 
The public comment period shall begin when the Executive Director 
announces the availability of the Draft EA on the NCPC Web site 
(www.ncpc.gov). The NCPC, at its sole discretion, may decline to 
circulate a draft EA for non-controversial projects.


Sec.  601.16   Finding of No Significant Impact.

    (a) If NCPC is the Lead Agency and the final EA supports a FONSI, 
NCPC shall prepare and execute a FONSI. The FONSI shall be prepared 
following closure of the discretionary public comment period on a Draft 
EA, or if no circulation is deemed necessary, at the conclusion of the 
preparation of an EA. The FONSI shall briefly state the reasons why the 
proposed action will not have a significant effect on the environment 
and include the EA or a summary thereof, any Mitigation commitments, 
and a schedule for implementing the Mitigation commitments.
    (b) If NCPC is not the Lead Agency, it shall evaluate the adequacy 
of the Lead Agency's FONSI, and if determined adequate, NCPC may co-
sign the Lead Agency's FONSI. Alternatively, NCPC may prepare and 
execute its own FONSI consistent with the requirements of paragraph (a) 
of this section.
    (c) A FONSI prepared by NCPC shall be available for public review 
seven calendar days before the Commission takes action on the 
underlying application.
    (d) If the Commission determines a Lead Agency's EA does not 
support a FONSI, either the Lead Agency shall prepare an EIS, or the 
Commission shall not approve or consider further the underlying 
application.


Sec.  601.17   Supplemental Environmental Assessments.

    (a) The NCPC shall prepare a supplemental EA if five or more years 
have elapsed since adoption of the EA and:
    (1) There are substantial changes to the proposed action that are 
relevant to environmental concerns; and
    (2) There are significant new circumstances or information that are 
relevant to environmental concerns and have a bearing on the proposed 
action or its impacts.
    (b) The NCPC may supplement a Draft or Final EA at any time to 
further the purposes of NEPA.
    (c) The NCPC shall prepare, circulate, and file a supplement to a 
Draft or Final EA, and adopt a FONSI in accordance with the 
requirements of Sec. Sec.  601.15 and 601.16. If NCPC is not the Lead 
Agency, it shall proceed as outlined in Sec.  601.16(b) and (c).

Subpart F--Environmental Impact Statements


Sec.  601.18   Requirement for and timing of an Environmental Impact 
Statement.

    Prior to the Commission's approval of a major federal action 
significantly affecting the quality of the human environment, the 
Executive Director shall prepare an EIS on behalf of a Non-federal 
Agency applicant.


Sec.  601.19   Context, intensity, and significance of impacts.

    (a) As required by 40 CFR 1508.27(a) and (b), the determination of 
whether an EIS is required and whether impacts are significant shall be 
made with consideration to the context and intensity of the impacts 
associated with a proposed action.
    (b) The significance of an action is determined in the context of 
its effects on society as a whole, the National Capital Region and its 
environs, the particular interests affected, and the specific locality 
or area within which the proposed action is located. The context will 
vary from project to project and will be based on the type, attributes, 
and characteristics of a particular proposal.
    (c) The significance of an action is also determined based on the 
severity of impacts imposed by the proposal. Severity shall be 
determined based on an evaluation of a proposal in the manner outlined 
in 40 CFR1508.27(b)(1) through (10). The evaluation shall also be 
informed by the relevant policies of ``The Comprehensive Plan for the 
National Capital: Federal Elements'' and other applicable Commission 
plans and programs. Proposed actions that conflict

[[Page 24580]]

with or delay achievement of the goals and objectives of Commission 
plans and programs are generally more likely to be found to have 
significant impacts than proposals that are consistent with Commission 
plans and programs.
    (d) Proposed actions shall also be deemed significant and require 
and EIS if they exhibit the following characteristics:
    (1) The proposed action results in extensive change to the 
Monumental Core.
    (2) The proposed action causes substantial alteration to the 
important historical, cultural, and natural features of the National 
Capital and its Environs.
    (3) The proposed action is likely to be controversial because of 
its impacts on the human environment.


Sec.  601.20   Streamlining Environmental Impact Statements.

    The NCPC as Lead Agency shall use all available techniques to 
minimize the length of an EIS. Such techniques include, without 
limitation, drafting an EIS in clear, concise language; preparing an 
analytic vs. encyclopedic EIS; reducing emphasis on background 
information; using the scoping process to emphasize significant issues 
and de-emphasize non-significant issues; incorporating relevant 
information by reference; using a programmatic EIS and tiering to 
eliminate duplication in subsequent EISs; and following the format 
guidelines of Sec.  601.22.


Sec.  601.21   Programmatic Environmental Impact Statements and 
tiering.

    (a) The NCPC shall prepare a programmatic NEPA Document 
(Programmatic EA or PEA or Programmatic EIS or PEIS) to assess the 
impacts of proposed projects and plans when there is uncertainty 
regarding the timing, location and environmental impacts of subsequent 
implementing actions. At the time NCPC undertakes a site or project 
specific action within the parameters of the PEA or PEIS, NCPC shall 
tier its NEPA Document by summarizing information in the PEIS or PEA, 
as applicable, and concentrate on the issues applicable to the specific 
action.
    (b) A PEIS or PEA prepared by NCPC shall be governed by the CEQ 
regulations and the rules of this part.


Sec.  601.22   Contents of an Environmental Impact Statement.

    When NCPC serves as Lead Agency for an EIS, the following 
information shall be included in the EIS:
    (a) A cover sheet. The cover sheet shall be one-page and include a 
list of responsible and Cooperating Agencies; the title of the proposed 
action that is the subject of the EIS; the name, address, and telephone 
number of the NCPC point of contact; the designation as to whether the 
statement is draft, final, or draft or final supplement; a one 
paragraph abstract of the EIS; and the date by which comments must be 
received.
    (b) A summary. The summary shall accurately summarize the 
information presented in the EIS. The summary shall focus on the main 
conclusions, areas of controversy, and the issues to be resolved. The 
summary shall not exceed fifteen pages.
    (c) A table of contents. The table of contents shall allow a reader 
to quickly locate subject matter in the EIS--either by topic area and/
or alternatives analyzed.
    (d) The purpose and need. A statement of the purpose of and need 
for the action briefly stating the underlying purpose and need to which 
the agency is responding.
    (e) The identification of alternatives including the proposed 
action. This section shall provide a brief description and supporting 
documentation for all alternatives including the proposed action; the 
no action alternative; all reasonable alternatives including those not 
within the jurisdiction of the agency; alternatives considered but 
eliminated and the reason for their elimination; the agency's preferred 
alternative, if one exists; the environmentally preferred alternative; 
and Mitigation measures not already included in the proposed action.
    (f) The identification of the affected environment. This section 
shall provide a succinct description of the environment to be affected 
by the proposed action and the alternatives considered. This section 
shall include, if applicable, other activities in the area affected by 
or related to the proposed action.
    (g) The identification of environmental consequences. This section 
shall focus on the environmental impacts of the alternatives including 
the proposed action, any adverse environmental effects which cannot be 
avoided should the proposal be implemented, the relationship between 
short-term uses of the environment and the maintenance and enhancement 
of long-term productivity, and any irreversible commitments of 
resources which would be involved if the proposal is implemented. The 
impacts shall be discussed in terms of direct, indirect and cumulative 
effects and their significance, as well as any appropriate means to 
mitigate adverse impacts. The discussion shall also include issues and 
impact topics considered but dismissed to reveal non-impacted 
resources. Resource areas and issues requiring consideration shall 
include those identified in the scoping process, and, without 
limitation, the following:
    (1) Possible conflicts between the proposed action and the land use 
plans, policies, or controls (local, state, or Indian tribe) for the 
area concerned.
    (2) Natural and biological resources including topography, 
hydrology, soils, flora, fauna, floodplains, wetlands, and endangered 
species.
    (3) Air quality.
    (4) Noise.
    (5) Water resources including wastewater treatment and storm water 
management.
    (6) Utilities including energy requirements and conservation.
    (7) Solid waste and hazardous waste generation/removal.
    (8) Community facilities.
    (9) Housing.
    (10) Transportation network.
    (11) Socio-cultural and economic environments.
    (12) Environmental Justice and the requirements of Executive Order 
12898 (Federal Actions to Address Environmental Justice in Minority 
Populations).
    (13) Urban quality and design of the built environment including 
visual resources and aesthetics.
    (14) Historic and cultural resources to include documentation of 
the results of the Section 106 Consultation process.
    (15) Public health and safety.
    (h) A list of preparers. This list shall include all pertinent 
organizations, agencies, individuals, and government representatives 
primarily responsible for the preparation of the EIS and their 
qualifications.
    (i) An index. The index shall be structured to reasonably assist 
the reader of the Draft or Final EIS in identifying and locating major 
topic areas or elements of the EIS information. The level of detail of 
the index shall provide sufficient focus on areas of interest to any 
reader not just the most important topics.
    (j) An appendix. The appendix shall consist of material prepared in 
connection with an EIS (as distinct from material which is incorporated 
by reference) and material which substantiates any analysis fundamental 
to the EIS. The material in the appendix shall be analytical and 
relevant to the decision to be made. The appendix shall be circulated 
with the EIS or be readily available upon request.

[[Page 24581]]

Sec.  601.23   The Environmental Impact Statement process.

    (a) The NCPC shall involve the applicant, Federal and District of 
Columbia agencies, members of the public and stakeholders in the 
preparation of an EIS. Public participation shall be required as part 
of Public Scoping process and review of the Draft EIS. The NCPC shall 
also consult with agencies having jurisdiction by law or expertise. 
Agencies with ``jurisdiction by law'' are those with ultimate 
jurisdiction over a project and whose assistance may be required on 
certain issues and those with other kinds of regulatory or advisory 
authority with respect to the action or its effects on particular 
environmental resources.
    (b) To determine the scope of an EIS through a Public Scoping 
process, NCPC shall proceed as follows:
    (1) Disseminate a NOI in accordance with 40 CFR 1506.6.
    (2) Publish a NOI in the Federal Register which shall begin the 
Public Scoping process.
    (3) Include the date, time, and location of a Public Scoping 
meeting in the NOI. The public meeting shall be announced at least 
thirty calendar days in advance of its scheduled date.
    (4) Hold Public Scoping meeting(s) in facilities that are 
accessible to the disabled; include Translators requested in advance; 
include signers or interpreters for the hearing impaired if requested 
in advance; and allow special arrangements for consultation with 
affected Indian tribes or other Native American groups who have 
environmental concerns that cannot be shared in a public forum.
    (5) Consider all comments received during the announced comment 
period regarding the analysis of alternatives, the affected 
environment, and identification of potential impacts.
    (6) Apply the provisions of this section to a Supplemental EIS if 
the Executive Director of NCPC, in his/her sole discretion, determines 
a Public Scoping process is required for a Supplemental EIS.
    (c) A Draft EIS shall be available to the public for their review 
and comment, for a period of not less than forty-five calendar days. 
The public comment period shall begin when EPA publishes a NOA of the 
document in the Federal Register. The NCPC shall hold at least one 
public meeting during the public comment period on a Draft EIS. The 
public meeting shall be announced at least thirty calendar days in 
advance of its scheduled occurrence. The announcement shall identify 
the subject of the Draft EIS and include the public meeting date, time, 
and location.


Sec.  601.24   Final Environmental Impact Statement.

    (a) The NCPC shall prepare a Final EIS following the public comment 
period and the public meeting(s) on the Draft EIS. The Final EIS shall 
respond to oral and written comments received during the Draft EIS 
public comment period.
    (b) The Commission shall take final action on an application 
following a thirty-day Commission-sponsored review period of the Final 
EIS. The thirty-day period shall start when the EPA publishes a NOA for 
the Final EIS in the Federal Register.


Sec.  601.25  Record of Decision.

    (a) If NCPC as the Lead Agency decides to recommend approval of a 
proposed action covered by an EIS, it shall prepare and sign a ROD 
stating the Commission's decision and any conservation or Mitigation 
measures required by the Commission. The ROD shall include among 
others:
    (1) A statement of the decision.
    (2) The identification of alternatives considered in reaching a 
decision specifying the alternatives that were considered to be 
environmentally preferable. The ROD shall discuss preferences among 
alternatives based on relevant factors including economic and technical 
planning considerations and the Commission's statutory mission. The ROD 
s shall identify those factors balanced to reach a decision and the 
influence of various factors on the decision.
    (3) A statement as to whether all practicable means to avoid or 
minimize environmental harm from the alternative selected has been 
adopted, and if not, why they are not.
    (4) A monitoring and enforcement program that summarizes Mitigation 
measures.
    (5) Date of issuance.
    (6) Signature of the Chairman.
    (b) The contents of the ROD proposed for Commission adoption shall 
be summarized in the EDR and a full version of the document shall be 
included as an Appendix to the EDR. The proposed ROD, independently of 
the EDR, shall be made available to the public for review fourteen 
calendar days prior to the Commission's consideration of the proposed 
action for which the EIS was prepared.
    (c) The Commission shall arrive at its decision about the proposed 
action and it's environmental effects in a public meeting of record as 
identified by the Commission's monthly agenda.
    (d) If NCPC is not the Lead Agency, it shall either co-sign the 
Lead Agency's ROD if it agrees with its contents and conclusions or it 
shall prepare and sign its own ROD consistent with the requirements of 
paragraph (a) of this section.
    (e) If the Commission determines a Lead Agency's EIS fails to 
support a ROD, the Lead Agency shall revise its EIS, or, alternatively, 
the Commission shall not approve or give any further consideration to 
the underlying application.


Sec.  601.26   Supplemental Environmental Impact Statement.

    (a) The NCPC shall prepare a supplemental EIS if five or more years 
has elapsed since adoption of the EIS and:
    (1) There are substantial changes to the proposed action that are 
relevant to environmental concerns; and
    (2) There are significant new circumstances or information that are 
relevant to environmental concerns and have a bearing on the proposed 
action or its impacts.
    (b) The NCPC may supplement a Draft or Final EIS at any time, to 
further the purposes of NEPA.
    (c) The NCPC shall prepare, circulate, and file a supplement to a 
Draft or Final EIS in accordance with the requirements of Sec. Sec.  
601.22 through 601.24 of this part except that Public Scoping is 
optional for a supplemental EIS.
    (d) The NCPC shall prepare a ROD for a Supplemental EIS. The ROD's 
contents, the procedure for public review, and the manner in which it 
shall be adopted shall be as set forth in Sec.  601.25.


Sec.  601.27   Legislative Environmental Impact Statement.

    (a) Consistent with 40 CFR 1506.8, the Executive Director shall 
prepare an EIS for draft legislation initiated by NCPC for submission 
to Congress. The EIS for the proposed legislation shall be included as 
part of the formal transmittal of NCPC's legislative proposal to 
Congress.
    (b) The requirements of this section shall not apply to legislation 
Congress directs NCPC to prepare.

Subpart G--Dispute Resolution


Sec.  601.28   Dispute resolution.

    Any disputes arising under this part, shall be resolved, unless 
otherwise stated, by the parties through interagency, good faith 
negotiations starting at the working levels of each agency, and if 
necessary, by escalating such disputes within the respective agencies. 
If resolution at higher levels is

[[Page 24582]]

unsuccessful, the parties shall resort to mediation.


Sec.  601.29   [Reserved]

    Dated: May 23, 2017.
Anne R. Schuyler,
General Counsel.
[FR Doc. 2017-10940 Filed 5-26-17; 8:45 am]
 BILLING CODE P