National Environmental Policy Act Implementing Procedures, 23805-23812 [2019-10745]

Agencies

• National Foundation on the Arts and the Humanities
• National Endowment for the Humanities

[Federal Register Volume 84, Number 100 (Thursday, May 23, 2019)]
[Notices]
[Pages 23805-23812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10745]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Humanities


National Environmental Policy Act Implementing Procedures

AGENCY: National Endowment for the Humanities, National Foundation on 
the Arts and the Humanities.

ACTION: Notice of Final National Environmental Policy Act Implementing 
Procedures.

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SUMMARY: This document contains the final National Endowment for the 
Humanities (``NEH'') procedures for compliance with the National 
Environmental Policy Act of 1969 (``NEPA''), as amended. This action is 
necessary to implement these procedures and make them available to the 
public on NEH's internet site.

DATES: These procedures are effective May 23, 2019.

FOR FURTHER INFORMATION CONTACT: Michael McDonald; (202) 606-8322; 
[email protected].

SUPPLEMENTARY INFORMATION: NEH is an independent agency within the 
executive branch of the United States government, established by the 
National Foundation on the Arts and the Humanities Act of 1965. NEH 
extends financial assistance to individuals and organizations to 
support research, education, preservation, and public programs in the 
humanities. It also has statutory authority to extend financial 
assistance to cultural organizations to enable infrastructure 
development and capacity building, including through the design, 
purchase, construction, restoration, or renovation of facilities needed 
for humanities activities and historic landscapes.
    NEPA and implementing regulations promulgated by the Council on 
Environmental Quality (``CEQ'') (40 CFR parts 1500-1508) established a 
broad national policy to use all practicable means and measures, 
including financial and technical assistance, in a manner calculated to 
foster and promote the general welfare, as well as to create and 
maintain conditions under which man and nature can exist in productive 
harmony and fulfill the social, economic, and other requirements of 
present and future generations of Americans.
    The CEQ regulations implementing the procedural provisions of NEPA 
are designed to ensure that this national policy, environmental 
considerations, and associated public concerns are given careful 
attention and appropriate weight in all decisions of the federal 
government. Section 102(2) of NEPA and 40 CFR 1505.1 and 1507.3 require 
federal agencies to develop and, as needed, revise implementing 
procedures consistent with the CEQ regulations. NEH is issuing the 
following NEPA implementing procedures that comply with NEPA and 
supplement the CEQ regulations. Per 40 CFR 1507.3, CEQ has reviewed 
these final implementing procedures for conformity with NEPA and the 
CEQ regulations, and considered NEH's responses to comments from the 
public.
    The remaining sections of SUPPLEMENTARY INFORMATION will provide 
background and address comments NEH received in response to its 
proposed NEPA implementing procedures. Following the SUPPLEMENTARY 
INFORMATION is the text of the final procedures.

Background

    On October 15, 2018, NEH published a notice in the Federal Register 
(83 FR 52235) advising the public of its intent to promulgate NEPA 
implementing procedures, including a list of ``categorical exclusions'' 
(i.e., those actions which do not individually or cumulatively have a 
significant effect on the human environment and for which, in the 
absence of extraordinary circumstances, further environmental review 
and documentation is not required). NEH solicited public comments on 
its proposed procedures.
    Consistent with CEQ regulations, NEH consulted with CEQ prior to 
making its proposed implementing procedures available for public review 
and comment. 40 CFR 1507.3. The comment period closed on November 15, 
2018. NEH received comments from three individuals, which it posted to 
the NEH website at https://www.neh.gov/public-comments-neh-rulemaking-and-other-notices.

[[Page 23806]]

Comments

    One commenter expressed concern that NEH intends to issue these 
procedures to inhibit its ability to fund humanities-related projects. 
That commenter also questioned whether an NEH-funded project would ever 
not receive a ``Finding of No Significant Impact.''
    NEH has determined to issue these procedures because: (i) CEQ 
regulations require that agencies adopt procedures to ensure that their 
decision-making is consistent with the policies and purposes of NEPA 
(40 CFR 1505.1 and 1507.3); (ii) CEQ specifically advised NEH to adopt 
NEPA implementing procedures; and (iii) NEH identified a particular 
need to adopt such procedures in light of recent agency efforts to 
support projects involving the design, purchase, construction, 
restoration, and renovation of facilities and historic landscapes. 
These efforts, supported through NEH's Challenge Grant program, will 
strengthen the institutional base of the humanities by enabling 
infrastructure development and capacity building. NEH's NEPA 
implementing procedures, and in particular the categorical exclusions, 
will facilitate--rather than impede--NEH's grant making activities by 
creating a protocol through which NEH and its award recipients will 
assess whether and to what extent NEH-funded activities require 
heightened environmental review as mandated by NEPA.
    It bears emphasizing that the majority of NEH grant-making 
activities (i.e., those supporting research, education, preservation, 
and public programs in the humanities) are likely to fall under one of 
NEH's ``General Categorical Exclusions,'' as activities having no 
inherent potential for significant environmental impact, that require 
no further environmental documentation or review.
    As for NEH-funded construction, restoration, and renovation 
projects, such projects must serve NEH's narrow statutory mission of 
promoting humanities excellence. Accordingly, such projects most often 
involve the construction or renovation of libraries, museums, and other 
facilities that house and advance scholarly research. To maximize 
public outreach, such NEH-funded construction activities often take 
place in already-developed areas. For these reasons, except for 
potential effects to historic sites, that NEH will evaluate under 
Section 106 of the National Historic Preservation Act (``NHPA''), NEH-
funded construction and renovation projects generally pose minimal 
potential impact to the human environment. Accordingly, to the extent 
NEH has control and responsibility for such projects sufficient to 
implicate NEPA in the first instance, NEH anticipates that most of 
these projects are likely to fall under a Program Specific Categorical 
Exclusion.
    The second commenter similarly requested that NEH not implement 
overly restrictive procedures that could otherwise impede the agency's 
work. As explained above, much of NEH's business falls under one or 
more ``General Categorical Exclusions,'' and NEH anticipates that most 
NEH-funded projects involving construction and renovation for which NEH 
has control and responsibility are likely to fall under a ``Program 
Specific Categorical Exclusion.''
    It bears emphasizing that NEH drafted its proposed categorical 
exclusions with the dual goals of increasing administrative efficiency 
in NEPA compliance and avoiding misuse of categorical exclusions that 
could lead to non-compliance with NEPA requirements. Furthermore, it 
developed its categorical exclusions after (i) carefully considering 
each of its programs and activities; (ii) consulting with those NEH 
staff members responsible for administering NEH grants involving 
facility construction, restoration, renovation, and repair; (iii) 
canvassing the categorical exclusions used by other federal agencies; 
and (iv) consulting with CEQ. Based upon NEH's findings, which it 
documented in an ``Administrative Record for NEH Proposed Categorical 
Exclusions under NEPA,'' NEH does not believe its procedures are overly 
restrictive or will unduly impede its work.
    The third commenter submitted a number of proposed edits to NEH's 
implementing procedures. The commenter explained that he based his 
comments on simplifying the NEPA documentation process to ensure that 
NEH invests its environmental analysis and documentation on those 
actions that may significantly affect the quality of the human 
environment and avoid unnecessary work. NEH addresses the commenter's 
specific proposed edits in turn below.
    First, the commenter proposed that NEH add text to the 
``Applicability'' section of its procedures (Section 2) clarifying 
those instances in which NEPA applies: Namely, (i) when NEH has a goal 
and is actively preparing to make a decision on one or more alternative 
means of accomplishing that goal and the effects can meaningfully be 
evaluated; (ii) the proposed action is subject to NEH control and 
responsibility; (iii) the proposed action would cause effects on the 
human environment as defined in 40 CFR 1508.14; and (iv) the proposed 
action is not statutorily exempt from the requirements of section 
102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)).
    NEH agrees that it would be helpful to add such clarification to 
Section 2 of its implementing procedures. It notes that the limiting 
language closely follows that set forth in the CEQ regulations and that 
other agencies have included similar applicability guidelines within 
their NEPA implementing procedures: For example, the Department of the 
Interior (43 CFR 46.100) and the United States Forest Service (36 CFR 
220.4).
    Second, the commenter objected to NEH's proposal that actions 
otherwise meeting the criteria for Program Specific Categorical 
Exclusions require completion of a Record of Environmental 
Consideration (``REC'') documenting NEH's determination that the 
activity qualifies for a categorical exclusion. Although the commenter 
acknowledged that other agencies impose similar documentation 
requirements with respect to projects involving construction, 
renovation, rehabilitation or other ground disturbance, he asked that 
NEH consider making the documentation requirement for Program Specific 
Categorical Exclusions optional, and suggested that NEH retain 
discretion to complete such documentation based on ``risks.'' The 
commenter contended that the requirement that NEH complete an REC will 
increase the agency's paperwork burden with respect to actions that 
should otherwise be excluded from documentation.
    NEH agrees that activities meeting the criteria set forth within 
its General Categorical Exclusions should require no further 
documentation, as such activities generally pose no inherent potential 
for significant environmental impacts. Accordingly, NEH did not propose 
completion of a REC for these activities. In addition, NEH concurs with 
the commenter's concern regarding the potential increase in burden that 
could result by using the REC attached in Appendix B, and has deleted 
it. NEH will document Program Specific Categorical Exclusions (Section 
B of Appendix A) in a manner that aligns with NEH's NEPA implementing 
procedures, but will not require the use of the REC to do so.
    Specifically, for activities falling under a Program Specific 
Categorial Exclusion, NEH will document whether extraordinary 
circumstances exist, and in the absence of extraordinary

[[Page 23807]]

circumstances, NEH will require no further environmental documentation 
such as would be required to conduct an environmental assessment 
(``EA'') or an environment impact statement (``EIS''). Accordingly, 
NEH's determination that such activities qualify for a categorical 
exclusion will greatly reduce the documentation burden on NEH and its 
award recipients by obviating the need for further environmental 
review.
    Third, the commenter proposed a series of edits to NEH's 
enumeration of the ``extraordinary circumstances'' in Section 10 of its 
implementing procedures that would require preparation of an EA or EIS. 
Consistent with CEQ regulations (40 CFR 1508.27), and for the sake of 
clarity, NEH agrees to define ``extraordinary circumstances'' as 
arising when a typically-categorically excluded action has the 
reasonable likelihood to result in individually or cumulatively 
significant impacts on the public health, public safety, or the 
environment.
    Consistent with a number of federal court decisions, NEH further 
agrees to add text to Section 10 clarifying that the phrase ``highly 
controversial'' refers to a ``substantial'' and ``scientifically-
verifiable'' controversy regarding a project's impact. In addition, NEH 
will eliminate from its list of potential ``extraordinary 
circumstances'' reference to ``scientifically controversial'' effects, 
which the above edit has made redundant.
    The commenter further recommended that NEH delete from its list of 
potential ``extraordinary circumstances'' reference to activities 
reasonably likely to (i) have a greater scope or size than is normal 
for the category of action; (ii) degrade already existing poor 
environmental conditions or initiate a degrading influence, activity or 
effect in areas not already significantly modified from their natural 
conditions; and (iii) have a disproportionately high and adverse effect 
on low income or minority populations (see Executive Order 12898). The 
commenter questioned whether the presence of these circumstances alone 
constitute ``extraordinary circumstances,'' and doubted those items' 
utility as ``criterion for extraordinary circumstances.''
    NEH notes that the situations listed in Section 10 of these 
procedures are not themselves ``criterion of extraordinary 
circumstances,'' but are rather examples of ``extraordinary 
circumstances.'' NEH believes that the language it has added to these 
procedures explaining that, to give rise to an ``extraordinary 
circumstance,'' an action must have a reasonable likelihood of causing 
a ``significant'' impact on public health, public safety, or the 
environment, helps clarify that the list of enumerated effects are 
illustrative of potential extraordinary circumstances, and are not 
themselves dispositive. Accordingly, NEH has determined to retain 
reference to degraded pre-existing conditions and disproportionate 
effects on low income or minority populations, as it has now made clear 
that such effects constitute ``extraordinary circumstance'' provided 
they otherwise have a significant impact on human health, safety or the 
environment.
    NEH agrees with the commenter, however, that whether an activity is 
likely to have a greater scope or size than is normal for the category 
of action is not an especially helpful illustration of an activity 
giving rise to an extraordinary circumstance, and accordingly, NEH will 
delete that reference. Whether any particular action gives rise to 
``extraordinary circumstances'' will necessarily depend on the action's 
potential for significant impacts, which will most likely depend in 
some measure on its scope or size relative to similar actions.
    The commenter recommended that NEH delete the ``General Categorical 
Exclusions'' from Appendix A of these procedures on the ground that 
NEPA does not require that agencies ``establish categorical exclusions 
for actions that do not affect the natural and physical environment and 
the relationship of people with that environment.'' NEH disagrees. 
While CEQ has made clear that NEPA applies only to ``Major Federal 
Actions''--i.e., those actions with effects that ``may be'' significant 
(40 CFR 1508.18)--it has also defined ``categorical exclusion'' to mean 
those actions that do not individually or cumulatively have a 
significant effect on the human environment (40 CFR 1508.4). In other 
words, it is through the process of evaluating and issuing categorical 
exclusions that agencies determine which of their actions will not 
affect the natural and physical environment and the relationship of 
people with that environment. As memorialized in its Administrative 
Record for NEH Proposed Categorical Exclusions under NEPA, NEH 
determined that the activities identified in its General Categorical 
Exclusions have very little inherent potential for significant 
environmental impact. Accordingly, NEH will not require preparation of 
an REC for such activities or consideration of potential extraordinary 
circumstances.
    Moreover, NEH's inclusion within its General Categorical Exclusions 
of routine administrative and management activities, the preparation of 
regulations, and the approval and issuance of financial assistance to 
support research, education, preservation, and public programs in the 
humanities, is consistent with the categorical exclusions adopted by 
numerous other federal agencies: For example, the Denali Commission (45 
CFR part 900, Appendix B), the Department of the Interior (43 CFR 
46.210), the Department of Health and Human Services--Indian Health 
Services (58 FR 569), and the U.S. Forest Service (36 CFR 220.6 
(adopting the categorical exclusions issued by the Department of 
Agriculture at 7 CFR part 1b.3)).
    The commenter further noted that NEH's explanation in Appendix B 
that a categorical exclusion may only apply after NEH has determined 
that a particular construction, renovation or rehabilitation project is 
``not reasonably likely to have a significant effect on historic 
properties'' is redundant of Section 10, in which NEH identified the 
``significant effect on environmentally sensitive resources'' as a 
potential extraordinary circumstance. NEH included this language in 
Appendix B because the agency frequently supports projects involving 
renovation, repair and/or rehabilitation of historic properties. For 
such projects, NEH requires review under Section 106 of the NHPA. For 
this reason, and notwithstanding the fact that NEH has determined to 
delete Appendix B, NEH believes it is important that these NEPA 
implementing procedures expressly state that a categorical exclusion 
determination may not be made until after NEH has performed a review 
under Section 106 of the NHPA and determined that there exist no 
adverse effects to historic properties, or that any such effects can be 
mitigated effectively.
    The commenter further recommended that NEH delete from the second 
Program Specific Categorical Exclusion those conditions requiring that 
(i) there is no evidence of community controversy; (ii) the proposed 
use will not substantially increase the number of motor vehicles at the 
facility or in the area; and (iii) the construction or improvement will 
not result in uses that exceed existing support infrastructure 
capacities (road, sewer, water, parking, etc.). The commenter 
recommended that each such condition be considered as a potential 
extraordinary circumstance rather than a condition to a categorical 
exclusion.
    NEH agrees with the commenter's suggestion regarding ``community 
controversy.'' Because NEH will identify as a possible extraordinary 
circumstance effects that are ``highly controversial'' it would be 
redundant and potentially

[[Page 23808]]

confusing to condition application of the second Program Specific 
Categorical Exclusion on a lack of ``community controversy.'' Should a 
project have effects that are reasonably likely to be ``highly 
controversial,'' the presence of such extraordinary circumstances would 
preclude application of a categorical exclusion.
    NEH will, however, retain all other conditions associated with the 
second Program Specific Categorical Exclusion, including those 
pertaining to motor vehicle presence and existing infrastructure 
capacity. Such conditions are consistent with those included in the 
categorical exclusions of numerous other federal agencies: For example, 
the Department of Commerce (74 FR 33204), the U.S. Missile Defense 
Agency (79 FR 46410), the National Capital Planning Commission (1 CFR 
601.12), and the Department of Homeland Security (71 FR 16790).

Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribution impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. These procedures have not been designated a ``significant 
regulatory action'' because they do not: (1) Have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy; a section of the economy; productivity; competition; 
jobs; the environment; public health or safety; or State, local, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
Agency; (3) materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in these Executive Orders. The text of the complete proposed 
procedures appears below.

    Dated: May 17, 2019.
Michael McDonald,
General Counsel, National Endowment for the Humanities.

Table of Contents

1. Purpose
2. Applicability
3. Environmental Policy
4. Terms and Abbreviations
5. Federal and Intergovernmental Relationships
6. Applicant Responsibility
7. NEH Responsibility
8. Public Involvement
9. Environmental Review Process
10. Categorical Exclusions
    a. General
    b. Conditions
    c. Extraordinary Circumstances
11. Environmental Assessments
    a. Content
    b. General Considerations in Preparing Environmental Assessments
    c. Public Involvement
    d. Actions Resulting From Assessment
    e. Findings of No Significant Impact
    f. Proposals Normally Requiring an Environmental Assessment
12. Environmental Impact Statements
    a. Notice of Intent and Scoping
    b. Preparation and Filing of Draft and Final Environmental 
Impact Statements
    c. Supplemental Environmental Impact Statement
    d. Adoption
    e. Proposals Normally Requiring an Environmental Impact 
Statement

The National Environmental Policy Act Procedures for NEH

1. Purpose

    These procedures implement the provisions of NEPA, 42 U.S.C. 4321 
et seq. They adopt and supplement the CEQ regulations implementing 
NEPA, 40 CFR parts 1500-1508, by establishing policy, directing 
environmental planning, and assigning responsibilities in NEH to 
prepare, review, and approve environmental documents, 40 CFR 1508.10, 
that comply with NEPA.

2. Applicability

    These procedures apply NEPA to NEH programs and activities, 
including programs and activities carried out by state and local 
governments, federally-recognized tribal governments and non-
governmental organizations with the use of NEH financial assistance, 
when the following apply:
    (a) The NEH has a goal and is actively preparing to make a decision 
on one or more alternative means of accomplishing that goal and the 
effects can meaningfully be evaluated (40 CFR 1508.23);
    (b) The proposed action is subject to NEH control and 
responsibility (40 CFR 1508.18);
    (c) The proposed action would cause effects on the human 
environment, which CEQ has interpreted comprehensively to include the 
natural and physical environment and the relationship of people with 
that environment (40 CFR 1508.14);
    (d) The proposed action is not statutorily exempt from the 
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).

3. Environmental Policy

    It is the policy of NEH to:
    (a) Start the NEPA process at the earliest possible time as an 
effective decision-making tool while evaluating a proposed action;
    (b) Comply with the procedures and policies of NEPA and other 
related environmental laws, regulations, and orders applicable to NEH 
actions;
    (c) Provide guidance to applicants responsible for ensuring that 
proposals comply with all appropriate NEH requirements;
    (d) Integrate NEPA requirements and other planning and 
environmental review procedures required by law or NEH practice so that 
all such procedures run concurrently rather than consecutively;
    (e) Encourage and facilitate public involvement in NEH actions that 
affect the quality of the human environment;
    (f) Use the NEPA process to identify and assess reasonable 
alternatives to proposed NEH actions to avoid or minimize adverse 
effects upon the quality of the human environment; and
    (g) Use all practicable means consistent with NEPA and other 
essential considerations of national policy to restore or enhance the 
quality of the human environment and avoid, minimize, or otherwise 
mitigate any possible adverse effects of NEH actions upon the quality 
of the human environment.

4. Terms and Abbreviations

    (a) For the purposes of this section, the definitions in the CEQ 
regulations, 40 CFR parts 1500 through 1508, are adopted and 
supplemented as set out in paragraphs (a)(i) through (vi) of this 
section. In the event of a conflict the CEQ regulations apply.
    (i) Action. Action and Federal action as defined in 40 CFR 1508.18 
include projects and programs entirely or partly financed, assisted, 
conducted, regulated, or approved by NEH.
    (ii) Applicant. The state, local or federally-recognized tribal 
government or non-governmental partner or organization applying to NEH 
for financial assistance or other approval. An applicant may be an 
organization

[[Page 23809]]

already in receipt of NEH-awarded funds.
    (iii) Approving Official. The NEH Chairman or an NEH staff member 
designated by the NEH Chairman to fulfill the responsibilities defined 
in Section 6 below, including overseeing development of and approval of 
the NEPA document.
    (iv) Finding of No Significant Impact (FONSI) is a document by NEH 
briefly presenting the reasons why an action, not otherwise excluded as 
provided in Section 10 below, will not have a significant impact on the 
human environment and for which an EIS will not be prepared.
    (v) NEH Proposal (or Proposal). A proposal, as defined at 40 CFR 
1508.23, is an NEH proposal whether initiated by NEH, another federal 
agency or an applicant.
    (vi) NEH Chairman: The Chairman of NEH, as established in Section 7 
of the National Foundation on the Arts and the Humanities Act of 1965, 
20 U.S.C. 956.
    (b) The following abbreviations are used throughout these 
procedures:
    (i) CATEX--Categorical exclusions;
    (ii) CEQ--Council on Environmental Quality;
    (iii) EA--Environmental assessment;
    (iv) EIS--Environmental impact statement;
    (v) FONSI--Finding of no significant impact;
    (vi) NEPA--National Environmental Policy Act of 1969, as amended;
    (vii) NOI--Notice of intent; and
    (viii) ROD--Record of decision.

5. Federal and Intergovernmental Relationships

    NEH occasionally partners with federal, state and local agencies, 
and federally-recognized tribal governments, and may depend on these 
governmental agencies for project management. Under such circumstances, 
NEH may rely on the expertise and processes already in use by 
partnering agencies to help prepare NEH NEPA analyses and documents.
    (a) With federal partners, NEH will work as either a joint lead 
agency (40 CFR 1501.5 and 1508.16) or cooperating agency (40 CFR 1501.6 
and 1508.5). NEH may invite other Federal agencies to serve as the lead 
agency, a joint lead agency, or as a cooperating agency.
    (b) Consistent with 40 CFR 1508.5, NEH may invite state and local 
government partners, and federally-recognized tribal governments, to 
serve as cooperating agencies.

6. Applicant Responsibility

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

7. NEH Responsibility

    (a) The NEH Chairman or his/her designee shall designate an 
Approving Official for each NEH proposal, and shall provide 
environmental guidance to the Approving Official;
    (b) The Approving Official shall provide direction and guidance to 
the applicant as well as identification and development of required 
analyses and documentation;
    (c) The Approving Official shall make an independent evaluation of 
the environmental issues, take responsibility for the scope and content 
of the environmental document (EA or EIS), and make the environmental 
finding;
    (d) The Approving Official shall ensure mitigation measures 
included in NEH decision documents (FONSI or ROD) are implemented; and
    (e) The Approving official shall be responsible for coordinating 
communications with cooperating agencies and other federal agencies.

8. Public Involvement

    NEH will make diligent efforts to involve the public in preparing 
and implementing its NEPA procedures in accordance with 40 CFR 
1501.4(b), 1506.6 and part 1503. When developing a plan to include the 
public and affected parties in the environmental analysis process, NEH 
will consider the following factors: (a) The magnitude of the 
environmental considerations associated with the proposal; (b) the 
extent of expected public interest; and (c) any relevant questions of 
national concern. NEH will specifically publish EAs and draft FONSIs on 
its website as provided in Section 11(c) below.

9. Environmental Review Process

    The environmental review process is the investigation of potential 
environmental impacts to determine the environmental process to be 
followed and to assist in the preparation of the environmental 
document. NEH shall specifically determine whether any NEH proposal:
    (a) Is categorically excluded from preparation of either an EA or 
an EIS;
    (b) Requires preparation of an EA; or
    (c) Requires preparation of an EIS.

10. Categorical Exclusions

    (a) General. A categorical exclusion (``CATEX'') is defined in 40 
CFR 1508.4 as a category of actions which do not individually or 
cumulatively have a significant effect on the human environment and for 
which, in the absence of extraordinary circumstances, neither an EA nor 
an EIS is required. Actions that meet the conditions in paragraph (b) 
of this section and are listed in section A of appendix A of these 
procedures can be categorically excluded from further analysis and 
documentation in an EA or EIS. Actions that meet the screening 
conditions in paragraph (b) of this section and are listed in section B 
of appendix A require documentation.
    (b) Conditions. The following three conditions must be met for an 
action to be categorically excluded from further analysis in an EA or 
EIS.
    (i) The action has not been segmented (too narrowly defined or 
broken down into small parts in order minimize its potential effects 
and avoid a higher level of NEPA review) and its scope includes the 
consideration of connected actions and, when evaluating extraordinary 
circumstances, cumulative impacts.
    (ii) No extraordinary circumstances described in paragraph (c) of 
this section exist.
    (iii) The proposed action fits within one of the categorical 
exclusions described in either section of Appendix A of this part.
    (c) Extraordinary Circumstances. Any action that normally would be 
classified as a CATEX but could involve extraordinary circumstances 
will

[[Page 23810]]

require appropriate environmental review documented in an NEH CATEX 
checklist to determine if the CATEX classification is proper or if an 
EA or EIS should be prepared. Extraordinary circumstances to be 
considered include those reasonably likely to:
    (i) Have effects on the environment that are highly controversial: 
i.e., a controversy that is both substantial and scientifically-
verifiable.
    (ii) Have effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or involve unresolved 
conflicts concerning alternative uses of available resources;
    (iii) Establish a precedent for future action or represent a 
decision in principle about future actions with potentially significant 
environmental effects;
    (iv) Relate to other actions with individually insignificant but 
cumulatively significant environmental effects;
    (v) Degrade already existing poor environmental conditions or 
initiate a degrading influence, activity, or effect in areas not 
already significantly modified from their natural condition;
    (vi) Have a disproportionately high and adverse effect on low 
income or minority populations (see Executive Order 12898);
    (vii) Limit access to and ceremonial use of Indian sacred sites on 
federal lands by Indian religious practitioners or adversely affect the 
physical integrity of such sacred sites (see Executive Order 13007);
    (viii) Threaten a violation of a federal, tribal, state or local 
law or requirement imposed for the protection of the environment;
    (ix) Significantly affect subsistence activities; or
    (x) Significantly affect environmentally sensitive resources, such 
as (A) properties listed, or eligible for listing, in the National 
Register of Historic Places; (B) species listed, or proposed to be 
listed, on the List of Endangered or Threatened Species, or their 
habitat; or (C) natural resources and unique geographic characteristics 
such as historic or cultural resources; park, recreation or refuge 
lands; wilderness areas; wild or scenic rivers; national natural 
landmarks; sole or principal drinking water aquifers; prime farmlands; 
special aquatic sites (defined under Section 404 of the Clean Water 
Act); floodplains; national monuments; and other ecologically 
significant or critical areas.

11. Environmental Assessments

    An EA is required for all proposals, except those exempt from NEPA 
or categorically excluded under these procedures, and those requiring 
an EIS. An EA is not necessary if the NEH has decided to prepare an 
EIS. EAs provide sufficient evidence and analysis to determine whether 
to prepare an EIS or issue a finding of no significant impact (FONSI). 
In addition, an EA may be prepared on any action at any time in order 
to assist in planning and decision making, to aid in NEH's compliance 
with NEPA when no EIS is necessary, or to facilitate EIS preparation. 
EAs shall be prepared in accordance with these procedures and shall 
contain analyses to support conclusions regarding environmental 
impacts. If a FONSI is proposed, it shall be prepared in accordance 
with Section 11(e) below.
(a) Content
    (i) The EA shall include brief discussions of the need for the 
proposal; of alternatives to the proposal as required by NEPA section 
102(2)(E); and of the environmental impacts of the proposal and 
alternatives. The EA shall also include a listing of agencies and 
persons consulted in the preparation of the EA.
    (ii) The EA may describe a broad range of alternatives and proposed 
mitigation measures to facilitate planning and decision-making.
    (iii) The EA should also document compliance, to the extent 
possible, with all applicable environmental laws and Executive Orders, 
or provide reasonable assurance that those requirements can be met.
    (iv) The EA should be a concise public document. The level of 
detail and depth of impact analysis will normally be limited to the 
minimum needed to determine the significance of potential environmental 
effects.
(b) General Considerations in Preparing Environmental Assessments
    (i) Adoption of an EA. NEH may adopt an EA prepared for a proposal 
before NEH by another agency or an applicant when the EA, or a portion 
thereof, addresses the proposed NEH action and meets the standards for 
an adequate analysis under these procedures and relevant provisions of 
40 CFR parts 1500 through 1508, provided that NEH makes its own 
evaluation of the environmental issues and takes responsibility for the 
scope and content of the EA in accordance with 40 CFR 1506.5(b).
    (ii) Incorporation by reference into the EA. Any document may be 
incorporated by reference in accordance with 40 CFR 1502.21 and used in 
preparing an EA in accordance with 40 CFR 1501.4(b) and 1506.5(a), 
provided that NEH makes its own evaluation of the environmental issues 
and takes responsibility for the scope and content of the EA in 
accordance with 40 CFR 1506.5(b).
    (iii) Applicant responsibility. The applicant shall assist NEH with 
preparing the EA. NEH remains responsible for compiling the public 
hearing summary or minutes, where applicable; and copies of any written 
comments received and responses thereto.
(c) Public Involvement
    (i) In accordance with 40 CFR 1506.6, the Approving Official shall 
publish EAs and draft FONSIs on the NEH website and make such documents 
available for public comment for not less than 15 calendar days.
    (ii) NEH will only take final action on an EA and draft FONSI after 
it reviews and considers public comments.
(d) Actions Resulting From Assessment
    (i) Accepted without modification. NEH may accept a proposal 
without modifications if the EA indicates that the proposal does not 
have significant environmental impacts and a FONSI is prepared in 
accordance with Section 11(e) below.
    (ii) Accepted with modification. If an EA identifies potentially 
significant environmental impacts, the proposal may be modified to 
eliminate such impacts. Proposals so modified may be accepted by NEH if 
the proposed changes are evaluated in an EA and a FONSI is prepared in 
accordance with Section 11(e) below.
    (iii) Mitigated FONSI. If mitigation is required to reduce the 
impacts below significant the FONSI shall identify the mitigation and 
adopt applicable monitoring and enforcement measures that are necessary 
to ensure the implementation of the mitigation measures.
    (iv) Prepare an EIS. NEH shall require that the proposal be 
evaluated in an EIS, prepared in accordance with Section 12 below, if 
the EA indicates significant environmental impacts that are not 
mitigated below a specified level of significance.
    (v) Rejected. NEH may always elect to reject a proposal.
(e) Findings of No Significant Impact
    (i) Content. A FONSI shall include the EA or a summary of it and 
shall note any other environmental documents related to it (40 CFR 
1501.7(a)(5)). If the EA is included, the finding need not repeat any 
of the discussion in the assessment but may incorporate it by 
reference.

[[Page 23811]]

    (ii) Publication. NEH shall make the final FONSI available to the 
public on the NEH website.
(f) Proposals Normally Requiring an EA
    Proposals that normally require preparation of an EA include 
proposed actions that potentially result in significant changes to 
established land use.

12. Environmental Impact Statements

    An EIS is required when the project is determined to have a 
potentially significant impact on the human environment.
(a) Notice of Intent and Scoping
    NEH shall publish an NOI, as described in 40 CFR 1508.22, in the 
Federal Register as soon as practicable after NEH makes a decision to 
prepare an EIS. If there will be a lengthy period of time between NEH's 
decision to prepare an EIS and its actual preparation, NEH may defer 
publication of the NOI until a reasonable time before preparing the 
EIS, provided that NEH allows a reasonable opportunity for interested 
parties to participate in the EIS process. NEH and the applicant will 
coordinate during the time period prior to the publication of the NOI 
to identify: the scope of the action, potential modifications to the 
proposal, potential alternatives, environmental constraints, potential 
timeframes for the environmental review, and federal, state, or tribal 
entities that could be interested in the project, including those with 
the potential to become cooperating agencies. Through the NOI, NEH 
shall invite comments and suggestions on the scope of the EIS.
    Publication of the NOI in the Federal Register shall begin the 
public scoping process. The public scoping process for an NEH EIS shall 
allow a minimum of 15 days for the receipt of public comments.
(b) Preparation and Filing of Draft and Final EISs
    (i) General. EISs shall be prepared in two stages and may be 
supplemented.
    (ii) Format. The EIS format recommended by 40 CFR 1502.10 shall be 
used unless NEH makes a determination on a particular project that 
there is a reason to do otherwise. In such a case, the EIS format must 
meet the minimum requirements prescribed in 40 CFR 1502.10, as further 
described in 40 CFR 1502.11 through 1502.18.
    (iii) Applicant role. The draft or final EIS shall be prepared by 
NEH with assistance from the applicant under appropriate guidance and 
direction from the Approving Official.
    (iv) Third-party consultants. A third-party consultant selected by 
NEH or in cooperation with a cooperating agency may prepare the draft 
or final EIS.
    (v) NEH responsibility. NEH shall provide a schedule with time 
limits, provide guidance, participate in the preparation, independently 
evaluate, and take responsibility for the content of the draft and 
final EIS.
    (vi) Filing. After a draft or final EIS has been prepared, NEH 
shall file the EIS with the Environmental Protection Agency (``EPA'') 
for publication of a notice of availability in accordance with 40 CFR 
1506.9 and 1506.10.
    (vii) Draft to final EIS. When a final EIS does not require 
substantial changes from the draft EIS, NEH may document required 
changes in errata sheets, insertion pages, and revised sections. NEH 
will then circulate such changes together with comments on the draft 
EIS, responses to comments, and other appropriate information as its 
final EIS. NEH will not circulate the draft EIS again; however, NEH 
will post the EIS on its website and provide the draft EIS if 
requested.
    (viii) Record of decision. A record of decision (ROD) will be 
prepared in accordance with 40 CFR 1505.2 and 1505.3.
(c) Supplemental EIS
    (i) Supplements to either draft or final EISs shall be prepared, as 
prescribed in 40 CFR 1502.9, when NEH finds that there are substantial 
changes proposed in a project that are relevant to environmental 
concerns, or when there are significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts.
    (ii) Where NEH action remains to be taken and the EIS is more than 
three years old, NEH will review the EIS to determine whether it is 
adequate or requires supplementation.
    (iii) NEH shall prepare, circulate and file a supplement to an EIS 
in the same fashion (exclusive of scoping) as a draft and final EIS. In 
addition, the supplement and accompanying administrative record shall 
be included in the administrative record for the proposal. When an 
applicant is involved, the applicant shall, under the direction of the 
Approving Official, provide assistance.
    (iv) An NOI to prepare a supplement to a final EIS will be 
published in those cases where a ROD has already been issued.
(d) Adoption
    (i) NEH may adopt a draft or final EIS or portion thereof (see 40 
CFR 1506.3), including a programmatic EIS, prepared by another agency.
    (ii) If the actions covered by the original EIS and the proposal 
are substantially the same, NEH shall recirculate it as a final 
statement. Otherwise, NEH shall treat the statement as a draft and 
recirculate it except as provided in paragraph (iii) of this section.
    (iii) Where NEH is a cooperating agency, it may adopt the EIS of 
the lead agency without recirculating it when, after an independent 
review of the EIS, NEH concludes that its comments and suggestions have 
been satisfied.
    (iv) When NEH adopts an EIS which is not final within the agency 
that prepared it, or when the action it assesses is the subject of a 
referral under 40 CFR part 1504, or when the EIS's adequacy is the 
subject of a judicial action which is not final, NEH shall so specify.
(e) Proposals Normally Requiring an EIS
    Given the nature of NEH activities, there are no proposals that 
would normally require use of an EIS. NEH would most likely use an EA 
in any given case to determine whether a project has a potentially 
significant impact on the human environment. The conclusion reached by 
NEH in the EA would dictate whether it would then prepare an EIS.

Appendix A to the National Environmental Policy Act Procedures for NEH

    Actions consistent with any of the following categories are, in the 
absence of extraordinary circumstances, categorically excluded from 
further analysis in an EA or EIS:

A. General Categorical Exclusions

    1. Routine administrative and management activities including, but 
not limited to, those activities related to budgeting, finance, 
personnel actions, procurement activities, compliance with applicable 
executive orders and procedures for sustainable or ``greened'' 
procurement, retaining legal counsel, public affairs activities (e.g., 
issuing press releases, newsletters and notices of funding 
availability), internal and external program evaluation and monitoring 
(e.g., site visits), database development and maintenance, and computer 
systems administration.
    2. Preparing, revising, or adopting regulations, including those 
that implement without substantial change the regulations, 
instructions, directives, or guidance documents from other Federal 
agencies.

[[Page 23812]]

    3. Routine activities undertaken by NEH to support its program 
partners, such as serving on task forces, ad hoc committees or 
representing NEH interests in other forums.
    4. Approving and issuing financial assistance to support research, 
education, preservation, and public programs in the humanities, except 
where such assistance supports the construction, restoration, or 
renovation of facilities, including the purchase or lease of new 
infrastructure, or otherwise involves ground disturbing activity.
    5. Approving and issuing financial assistance to support facility 
planning and design.
    6. Approving and issuing grants to support the purchase or lease of 
preexisting infrastructure.
    7. Nondestructive data collection, inventory, study, research, and 
monitoring activities.

B. Program Specific Categorical Exclusions

    Actions consistent with any of the following categories are, in the 
absence of extraordinary circumstances, categorically excluded from 
further analysis and documentation in an EA or EIS. A categorical 
exclusion determination may only be made after NEH has, if necessary, 
performed a review under Section 106 of the National Historic 
Preservation Act (``NHPA'') and determined and documented that such 
action is not reasonably likely to have an adverse effect on historic 
properties.
    1. Upgrade, repair, maintenance, replacement, or minor renovations 
and additions to facilities, grounds and equipment, including but not 
limited to, roof replacement, foundation repair, access ramp and door 
improvements pursuant to the Americans with Disabilities Act (``ADA''), 
weatherization and energy efficiency related improvements, HVAC 
renovations, painting, floor system replacement, repaving parking lots 
and ground maintenance, that do not result in a change in the 
functional use of the real property.
    2. Construction, purchase or lease of new infrastructure, 
including, but not limited to, museums, libraries and other community 
buildings, and office space, that is similar to existing land use if 
the area to be disturbed has no more than two acres of new surface 
disturbance. The following conditions must be met:
    a. The structure and proposed use are compatible with applicable 
Federal, tribal, state, and local planning and zoning standards.
    b. The site and scale of the construction or improvement is 
consistent with those of existing, adjacent, or nearby buildings.
    c. The proposed use will not substantially increase the number of 
motor vehicles at the facility or in the area.
    d. The construction or improvement will not result in uses that 
exceed existing support infrastructure capacities (road, sewer, water, 
parking, etc.).
    3. Construction, purchase or lease of new infrastructure, 
including, but not limited to, museums, libraries and other community 
buildings, and office space, where such construction, purchase or lease 
is for infrastructure of less than 12,000 square feet of useable space.
    4. Demolition, disposal, or improvements involving buildings or 
structures when done in accordance with applicable regulations, 
including those regulations applying to removal of asbestos, 
polychlorinated biphenyls (PCBs), and other hazardous materials.

[FR Doc. 2019-10745 Filed 5-22-19; 8:45 am]
 BILLING CODE 7536-01-P