National Environmental Policy Act Implementing Regulations Revisions Phase 2, 49924-49988 [2023-15405]

Download as PDF 49924 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules COUNCIL ON ENVIRONMENTAL QUALITY 40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508 [CEQ–2023–0003] RIN 0331–AA07 National Environmental Policy Act Implementing Regulations Revisions Phase 2 Council on Environmental Quality. ACTION: Notice of proposed rulemaking. AGENCY: The Council on Environmental Quality (CEQ) is proposing this ‘‘Bipartisan Permitting Reform Implementation Rule’’ to revise its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), including to implement the Fiscal Responsibility Act’s amendments to NEPA. CEQ proposes the revisions to provide for an effective environmental review process that promotes better decision making; ensure full and fair public involvement; provide for an efficient process and regulatory certainty; and provide for sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects. CEQ proposes these changes to better align the provisions with CEQ’s extensive experience implementing NEPA; CEQ’s perspective on how NEPA can best inform agency decision making; longstanding Federal agency experience and practice; NEPA’s statutory text and purpose, including making decisions informed by science; and case law interpreting NEPA’s requirements. CEQ invites comments on the proposed revisions. SUMMARY: ddrumheller on DSK120RN23PROD with PROPOSALS3 DATES: Comments: CEQ must receive comments by September 29, 2023. Public meetings: CEQ will conduct four virtual public meetings for the proposed rule on Saturday, August 26, 2023, from 1 p.m. to 4 p.m. EDT; Wednesday, August 30, 2023, from 5 p.m. to 8 p.m. EDT; Monday, September 11, 2023, from 1 p.m. to 4 p.m. EDT; and Thursday, September 21, 2023, from 2 p.m. to 5 p.m. EDT. For additional information and to register for the meetings, please visit CEQ’s website at www.nepa.gov. ADDRESSES: You may submit comments, identified by docket number CEQ– 2023–0003, by any of the following methods: VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 • Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. • Fax: 202–456–6546. • Mail: Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503. Instructions: All submissions received must include the agency name, ‘‘Council on Environmental Quality,’’ and docket number, CEQ–2023–0003, for this rulemaking. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided. Please do not submit electronically any information you consider private, Confidential Business Information (CBI), or other information, the disclosure of which is restricted by statute. Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel, 202–395–5750, Amy.B.Coyle@ ceq.eop.gov. SUPPLEMENTARY INFORMATION: I. Background A. NEPA Statute Congress enacted NEPA in 1969 by a unanimous vote in the Senate and a nearly unanimous vote in the House to declare an ambitious and visionary national policy to promote environmental protection for present and future generations.1 President Nixon signed NEPA into law on January 1, 1970. NEPA seeks to ‘‘encourage productive and enjoyable harmony’’ between humans and the environment, recognizing the ‘‘profound impact’’ of human activity and the ‘‘critical importance of restoring and maintaining environmental quality’’ to the overall welfare of humankind. 42 U.S.C. 4321, 4331. Furthermore, NEPA seeks to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of people, making it the continuing policy of the Federal Government to use all practicable means and measures to create and maintain conditions under which humans and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future 1 See Linda Luther, Cong. Rsch. Serv., RL33152, The National Environmental Policy Act: Background and Implementation, 4 (2008), https:// crsreports.congress.gov/product/ details?prodcode=RL33152. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 generations of Americans. 42 U.S.C. 4331(a). It also recognizes that each person should have the opportunity to enjoy a healthy environment and has a responsibility to contribute to the preservation and enhancement of the environment. 42 U.S.C. 4331(c). NEPA requires Federal agencies to interpret and administer Federal policies, regulations, and laws in accordance with NEPA’s policies and to consider environmental values in their decision making. 42 U.S.C. 4332. To that end, section 102(2)(C) of NEPA requires Federal agencies to prepare ‘‘detailed statements,’’ referred to as environmental impact statements (EISs), for ‘‘every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment’’ and, in doing so, provide opportunities for public participation to help inform agency decision making. 42 U.S.C. 4332(2)(C). The EIS process embodies the understanding that informed decisions are better decisions and lead to better environmental outcomes when decision makers understand, consider, and publicly disclose environmental effects of their decisions. The EIS process also enriches understanding of the ecological systems and natural resources important to the Nation and helps guide sound decision making, such as decisions on infrastructure and energy development, in line with highquality information, including the best available science, information and data, as well as the environmental design arts. In many respects, NEPA was a statute ahead of its time and remains relevant and vital today. It codifies the commonsense idea of ‘‘look before you leap’’ to guide agency decision making, particularly in complex and consequential areas, because conducting sound environmental analysis before agencies take actions reduces conflict and waste in the long run by avoiding unnecessary harm and uninformed decisions. See, e.g., 42 U.S.C. 4332. It establishes a framework for agencies to ground decisions in sound science and recognizes that the public may have important ideas and information on how Federal actions can occur in a manner that reduces potential harms and enhances ecological, social, and economic well-being. See, e.g., id. On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) into law, which included amendments to NEPA. Specifically, the FRA amended section 102(2)(C) and added sections 102(2)(D) through (F) and sections 106 through 111. The amendments in section 102(2)(C) largely codify longstanding principles that EISs E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules should include discussion of reasonably foreseeable environmental effects of the proposed action, reasonably foreseeable adverse environmental effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. Section 102(2)(D) requires Federal agencies to ensure the professional integrity of the discussion and analysis in an environmental document; section 102(2)(E) requires use of reliable data and resources when carrying out NEPA; and section 102(2)(F) requires agencies to study, develop, and describe technically and economically feasible alternatives. Section 106 adds provisions for determining the appropriate level of NEPA review. It clarifies that an agency is only required to prepare an environmental document when proposing to take an action that would constitute a final agency action and codifies existing regulations and caselaw that an agency is not required to prepare an environmental document when doing so would clearly and fundamentally conflict with the requirements of another law or a proposed action is non-discretionary. Section 106 also largely codifies the current CEQ regulations and longstanding practice with respect to the use of categorical exclusions (CEs), environmental assessments (EAs), and EISs, as modified by the new provision expressly permitting agencies to adopt CEs from other agencies established in section 109 of NEPA. Section 107 addresses timely and unified Federal reviews, codifying existing practice with a few minor adjustments, including provisions clarifying lead, joint-lead, and cooperating agency designation, generally requiring development of a single environmental document, directing agencies to develop procedures for project sponsors to prepare EAs and EISs, and prescribing page limits and deadlines similar to current requirements. Section 108 codifies time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review, and section 109 allows a Federal agency to use another agency’s CE. Section 111 adds a variety of definitions. This proposed rule would update the regulations to address how agencies should implement NEPA consistent with the amendments made by the FRA. B. The Council on Environmental Quality NEPA established the Council on Environmental Quality (CEQ) in the Executive Office of the President. 42 VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 49925 U.S.C. 4342. For more than 50 years, CEQ has advised presidents on national environmental policy, assisted Federal agencies in their implementation of NEPA, and overseen implementation of a variety of other environmental initiatives from the expeditious and thorough environmental review of infrastructure projects 2 to the sustainability of Federal operations.3 NEPA charges CEQ with overseeing and guiding NEPA implementation across the Federal Government. In addition to issuing the regulations for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to throughout as ‘‘the CEQ regulations’’), CEQ has issued guidance on numerous topics related to NEPA review. In 1981, CEQ issued the ‘‘Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations,’’ 4 which CEQ has routinely identified as an invaluable tool for Federal, Tribal, State, and local governments and officials, and members of the public, who have questions about NEPA implementation. CEQ also has issued guidance on a variety of other topics, from scoping to cooperating agencies to consideration of effects.5 For example, in 1997, CEQ issued guidance documents on the consideration of environmental justice in the NEPA context 6 under Executive Order (E.O.) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,7 and on analysis of cumulative effects in NEPA reviews,8 two documents that agencies continue to use today. From 2010 to the present, CEQ developed additional guidance on CEs, mitigation, programmatic reviews, and consideration of greenhouse gas (GHG) emissions in NEPA.9 To ensure 2 See, e.g., E.O. 14008, Tackling the Climate Crisis at Home and Abroad, 86 FR 7619 (Feb. 1, 2021); E.O. 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects, 77 FR 18885 (Mar. 28, 2012); E.O. 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, 67 FR 59449 (Sept. 23, 2002); see also Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures, 78 FR 30733 (May 22, 2013). 3 See, e.g., E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, 86 FR 70935 (Dec. 13, 2021); E.O. 13834, Efficient Federal Operations, 83 FR 23771 (May 22, 2018); E.O. 13693, Planning for Federal Sustainability in the Next Decade, 80 FR 15869 (Mar. 25, 2015); E.O. 13514, Federal Leadership in Environmental, Energy, and Economic Performance, 74 FR 52117 (Oct. 8, 2009); E.O. 13423, Strengthening Federal Environmental, Energy, and Transportation Management, 72 FR 3919 (Jan. 26, 2007); E.O. 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, 63 FR 49643 (Sept. 16, 1998). For Presidential directives pertaining to other environmental initiatives, see E.O. 13432, Cooperation Among Agencies in Protecting the Environment With Respect to Greenhouse Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad Engines, 72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to implement the E.O. and facilitate Federal agency cooperation to reduce greenhouse gas emissions); E.O. 13141, Environmental Review of Trade Agreements, 64 FR 63169 (Nov. 18, 1999) (requiring CEQ and the U.S. Trade Representative to implement the E.O., which has the purpose of promoting Trade agreements that contribute to sustainable development); E.O. 13061, Federal Support of Community Efforts Along American Heritage Rivers, 62 FR 48445 (Sept. 15, 1997) (charging CEQ with implementing the American Heritage Rivers initiative); E.O. 13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75 FR 43023 (Jul. 22, 2010) (directing CEQ to lead the National Ocean Council); E.O. 13112, Invasive Species, 64 FR 6183 (Feb. 8, 1999) (requiring the Invasive Species Council to consult with CEQ to develop guidance to Federal agencies under NEPA on prevention and control of invasive species). 4 CEQ, Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981) (‘‘Forty Questions’’), https://www.energy.gov/nepa/ downloads/forty-most-asked-questions-concerningceqs-national-environmental-policy-act. 5 See, e.g., CEQ, Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping (Apr. 30, 1981), https://www.energy.gov/ nepa/downloads/scoping-guidance-memorandumgeneral-counsels-nepa-liaisons-and-participantsscoping; CEQ, Incorporating Biodiversity Considerations Into Environmental Impact Analysis Under the National Environmental Policy Act (Jan. 1993), https://ceq.doe.gov/publications/ incorporating_biodiversity.html; CEQ, Council on Environmental Quality Guidance on NEPA Analyses for Transboundary Impacts (July 1, 1997), https://ceq.doe.gov/docs/ceq-regulations-andguidance/memorandum-transboundary-impacts070197.pdf; CEQ, Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (July 28, 1999), https://ceq.doe.gov/docs/ceq-regulations-andguidance/regs/ceqcoop.pdf; CEQ, Identifying NonFederal Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (Sept. 25, 2000), https:// ceq.doe.gov/docs/ceq-regulations-and-guidance/ memo-non-federal-cooperating-agencies09252000.pdf; CEQ & DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12, 2003), https://ceq.doe.gov/docs/ceq-regulationsand-guidance/CEQ-DOT_PurposeNeed_May2013.pdf. 6 CEQ, Environmental Justice: Guidance under the National Environmental Policy Act (Dec. 10, 1997) (‘‘Environmental Justice Guidance’’), https:// ceq.doe.gov/docs/ceq-regulations-and-guidance/ regs/ej/justice.pdf. 7 E.O. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 16, 1994). 8 CEQ, Considering Cumulative Effects Under the National Environmental Policy Act (Jan. 1997), https://ceq.doe.gov/publications/cumulative_ effects.html; see also CEQ, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (June 24, 2005), https://www.energy.gov/ sites/default/files/nepapub/nepa_documents/ RedDont/G-CEQ-PastActsCumulEffects.pdf. 9 CEQ, Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act (Nov. 23, 2010) (‘‘CE Guidance’’), https://ceq.doe.gov/docs/ceqregulations-and-guidance/NEPA_CE_Guidance_ Nov232010.pdf; CEQ, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\31JYP3.SGM Continued 31JYP3 49926 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 coordinated environmental review, CEQ has issued guidance to integrate NEPA reviews with other environmental review requirements such as the National Historic Preservation Act, E.O. 11988, Floodplain Management, and E.O. 11990, Protection of Wetlands.10 Finally, CEQ has provided guidance to ensure efficient and effective environmental reviews, particularly for infrastructure projects.11 In addition to guidance, CEQ engages frequently with Federal agencies on their implementation of NEPA. First, CEQ is responsible for consulting with all agencies on the development of their NEPA implementing procedures and determining that those procedures conform with NEPA and the CEQ regulations. Through this process, CEQ engages with agencies to understand their specific authorities and programs to ensure agencies integrate consideration of environmental effects into their decision-making processes. Additionally, CEQ provides feedback and recommendations on how agencies may effectively implement NEPA through their procedures. Second, CEQ consults with agencies on the efficacy and effectiveness of NEPA implementation. Where necessary or appropriate, CEQ engages with agencies on NEPA reviews for specific projects or project types to provide of Mitigated Findings of No Significant Impact (Jan. 14, 2011), https://ceq.doe.gov/docs/ceq-regulationsand-guidance/Mitigation_and_Monitoring_ Guidance_14Jan2011.pdf; CEQ, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (‘‘2023 GHG Guidance’’), https://ceq.doe.gov/guidance/ ceq_guidance_nepa-ghg.html. 10 CEQ, Implementation of Executive Order 11988 on Floodplain Management and Executive Order 11990 on Protection of Wetlands (Mar. 21, 1978), https://ceq.doe.gov/docs/ceq-regulations-andguidance/Memorandum-Implementation-of-EO11988-and-EO-11990-032178.pdf; CEQ & Advisory Council on Historic Preservation, NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 (Mar. 2013), https://ceq.doe.gov/docs/ceqpublications/NEPA_NHPA_Section_106_ Handbook_Mar2013.pdf. 11 See, e.g., CEQ, Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act (Mar. 6, 2012), https://ceq.doe.gov/docs/ceqregulations-and-guidance/Improving_NEPA_ Efficiencies_06Mar2012.pdf; CEQ, Effective Use of Programmatic NEPA Reviews (Dec. 18, 2014) (‘‘Programmatic Guidance’’), https:// www.energy.gov/sites/default/files/2016/05/f31/ effective_use_of_programmatic_nepa_reviews_ 18dec2014.pdf; OMB & CEQ, M–15–20, Guidance Establishing Metrics for the Permitting and Environmental Review of Infrastructure Projects (Sept. 22, 2015), https://www.whitehouse.gov/wpcontent/uploads/legacy_drupal_files/omb/ memoranda/2015/m-15-20.pdf; OMB & CEQ, M– 17–14, Guidance to Federal Agencies Regarding the Environmental Review and Authorization Process for Infrastructure Projects (Jan. 13, 2017), https:// www.whitehouse.gov/wp-content/uploads/legacy_ drupal_files/omb/memoranda/2017/m-17-14.pdf. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 advice and identify any emerging or cross-cutting issues that would benefit from CEQ issuing formal guidance or assisting with coordination. This includes establishing alternative arrangements for compliance with NEPA when agencies encounter emergency situations where they need to act swiftly while also ensuring they meet their NEPA obligations. CEQ also advises on NEPA compliance when agencies are establishing new programs or implementing new statutory authorities. Finally, CEQ helps advance the environmental review process for projects or initiatives deemed important to an administration such as nationally and regionally significant projects, major infrastructure projects, and consideration of climate change-related effects and effects on communities with environmental justice concerns.12 Third, CEQ meets regularly with external stakeholders to understand their perspectives on the NEPA process. These meetings can help inform CEQ’s development of guidance or other initiatives and engagement with Federal agencies. Finally, CEQ coordinates with other Federal agencies and components of the White House on a wide array of environmental issues and reviews that intersect with the NEPA process, such as Endangered Species Act consultation or effects to Federal lands and waters from federally authorized activities. In addition to its NEPA responsibilities, CEQ is currently charged with implementing several of the administration’s key environmental priorities. On January 27, 2021, the President signed E.O. 14008, Tackling the Climate Crisis at Home and Abroad, to establish a government-wide approach to the climate crisis by reducing GHG emissions across the economy; increasing resilience to climate change-related effects; conserving land, water, and biodiversity; transitioning to a cleanenergy economy; advancing environmental justice; and investing in disadvantaged communities.13 CEQ is leading the President’s efforts to secure environmental justice consistent with 12 See, e.g., Memorandum from President Barack Obama to the Heads of Executive Departments and Agencies, Speeding Infrastructure Development through More Efficient and Effective Permitting and Environmental Review (Aug. 31, 2011), https:// obamawhitehouse.archives.gov/the-press-office/ 2011/08/31/presidential-memorandum-speedinginfrastructure-development-through-more; E.O. 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, 82 FR 40463 (Aug. 24, 2017). 13 E.O. 14008, supra note 2. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 sections 219 through 223 of the E.O.14 For example, CEQ has developed the Climate and Economic Justice Screening Tool 15 and collaborates with the Office of Management and Budget (OMB) and the National Climate Advisor on implementing the Justice40 initiative, which sets a goal that 40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities.16 Section 205 of the E.O. also charged CEQ with developing the Federal Sustainability Plan, a directive that was augmented by E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability,17 to achieve a carbon pollution-free electricity sector and clean and zeroemission vehicle fleets. CEQ also is collaborating with the Departments of the Interior, Agriculture, and Commerce on the implementation of the America the Beautiful Initiative.18 Additionally, E.O. 14008 requires the Chair of CEQ and the Director of OMB to ensure that Federal permitting decisions consider the effects of GHG emissions and climate change.19 CEQ is also instrumental to the President’s efforts to institute a government-wide approach to advancing environmental justice. On April 21, 2023, the President signed E.O. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, to further embed environmental justice into the work of Federal agencies and ensure that all people can benefit from the vital safeguards enshrined in the Nation’s foundational environmental and civil rights laws.20 14 E.O. 14008’s direction to advance environmental justice reinforces and reflects longstanding policy established in E.O. 12898 and advances the related though distinct policy defined more broadly in E.O. 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, that the Federal Government ‘‘pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.’’ 86 FR 7009 (Jan. 25, 2021), sec. 1. 15 CEQ, Explore the Map, Climate and Economic Justice Screening Tool, https:// screeningtool.geoplatform.gov/. 16 E.O. 14008, supra note 2, sec. 223. 17 E.O. 14057, supra note 3. 18 E.O. 14008, supra note 2. 19 Id. at sec. 213(a); see also id., sec. 219 (directing agencies to ‘‘make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities’’). 20 E.O. 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023). E.O. 14096 builds upon efforts to advance environmental justice and equity E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules expertise developed through issuing and revising the CEQ guidelines and advising Federal agencies on their implementation of NEPA, initial interpretations of the courts, and Federal agency experience implementing NEPA. The 1978 regulations reflected the fundamental principles of informed and sciencebased decision making, transparency, and public engagement Congress established in NEPA. The regulations further required agency-level implementation, directing Federal agencies to issue and update periodically agency-specific implementing procedures to supplement CEQ’s procedures and integrate the NEPA process into the agencies’ specific programs and C. NEPA Implementation 1970–2019 Following shortly after the enactment processes. Consistent with 42 U.S.C. 4332(2)(B), the regulations also required of NEPA, President Nixon issued E.O. agencies to consult with CEQ in the 11514, Protection and Enhancement of Environmental Quality, directing CEQ to development or update of these agencyspecific procedures to ensure issue guidelines for implementation of consistency with CEQ’s regulations. section 102(2)(C) of NEPA.23 In response, CEQ in April 1970 issued CEQ made typographical amendments interim guidelines, which addressed the to the 1978 implementing regulations in provisions of section 102(2)(C) of the 1979 28 and amended one provision in Act regarding EIS requirements.24 CEQ 1986 (CEQ refers to these regulations, as revised the guidelines in 1971 and 1973 amended, as the ‘‘1978 regulations’’ in to address public involvement and this preamble).29 Otherwise, CEQ left introduce the concepts of EAs and draft the regulations unchanged for over 40 and final EISs.25 years. As a result, CEQ and Federal In 1977, President Carter issued E.O. agencies developed extensive 11991, Relating to Protection and experience implementing the 1978 Enhancement of Environmental Quality, regulations, and a large body of agency amending E.O. 11514 and directing CEQ practice and case law developed based to issue regulations for implementation on them. of section 102(2)(C) of NEPA and D. 2020 Amendments to the CEQ requiring that Federal agencies comply Regulations with those regulations.26 CEQ promulgated its NEPA regulations in On August 15, 2017, President Trump 1978.27 Issued 8 years after NEPA’s issued E.O. 13807, Establishing enactment, the NEPA regulations Discipline and Accountability in the reflected CEQ’s interpretation of the Environmental Review and Permitting statutory text and Congressional intent, Process for Infrastructure Projects,30 which directed CEQ to establish and consistent with the policy advanced in documents lead an interagency working group to including E.O. 13985, E.O. 14008, and E.O. 12898. See, e.g., note 14, supra. identify and propose changes to the 21 E.O. 14096, supra note 20, sec. 3. NEPA regulations.31 In response, CEQ 22 Id. at sec. 4. issued an advance notice of proposed 23 E.O. 11514, Protection and Enhancement of rulemaking (ANPRM) on June 20, Environmental Quality, 35 FR 4247 (Mar. 7, 1970), 2018,32 and a notice of proposed sec. 3(h). 24 See Statements on Proposed Federal Actions rulemaking (NPRM) on January 10, Affecting the Environment, 35 FR 7390 (May 12, 2020, proposing broad revisions to the ddrumheller on DSK120RN23PROD with PROPOSALS3 The E.O. charges each agency with making achieving environmental justice part of its mission consistent with statutory authority,21 and requires each agency to submit to the Chair of CEQ and make publicly available an Environmental Strategic Plan setting forth the agency’s goals and plans for advancing environmental justice.22 Further, section 8 of the E.O. establishes a White House Office of Environmental Justice within CEQ. Finally, CEQ is staffed with experts with decades of NEPA experience. CEQ’s diverse array of responsibilities and expertise has long influenced the implementation of NEPA, and CEQ relied extensively on this experience in developing this rulemaking. 1970) (interim guidelines). 25 Statements on Proposed Federal Actions Affecting the Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines); Preparation of Environmental Impact Statements, 38 FR 10856 (May 2, 1973) (proposed revisions to the guidelines); Preparation of Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1, 1973) (revised guidelines). 26 E.O. 11991, Relating to Protection and Enhancement of Environmental Quality, 42 FR 26967 (May 25, 1977). 27 Implementation of Procedural Provisions, 43 FR 55978 (Nov. 29, 1978). VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 28 Implementation of Procedural Provisions; Corrections, 44 FR 873 (Jan. 3, 1979). 29 National Environmental Policy Act Regulations; Incomplete or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22). 30 E.O. 13807, supra note 12. 31 Id., sec. 5(e)(iii). 32 Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 83 FR 28591 (June 20, 2018). PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 49927 1978 regulations.33 A wide range of stakeholders submitted more than 12,500 comments on the ANPRM 34 and 1.1 million comments on the proposed rule,35 including from state and local governments, Tribes, environmental advocacy organizations, professional and industry associations, other advocacy or non-profit organizations, businesses, and private citizens. Many commenters provided detailed feedback on the legality, policy wisdom, and potential consequences of the proposed amendments. In keeping with the proposed rule, the final rule, promulgated on July 16, 2020 (‘‘2020 regulations’’ or ‘‘2020 rule’’), made wholesale revisions to the regulations; it took effect on September 14, 2020.36 In the months that followed the issuance of the 2020 regulations, five lawsuits were filed challenging the 2020 rule.37 These cases challenge the 2020 rule on a variety of grounds, including under the Administrative Procedure Act (APA), NEPA, and the Endangered Species Act, contending that the rule exceeded CEQ’s authority and that the related rulemaking process was procedurally and substantively defective. In response to CEQ’s motions and joint motions, the district courts issued temporary stays in each of these cases, except for Wild Virginia v. Council on Environmental Quality, which the district court dismissed without prejudice on June 21, 2021.38 The Fourth Circuit affirmed that dismissal on December 22, 2022.39 33 Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 1684 (Jan. 10, 2020). 34 See Docket No. CEQ–2018–0001, https:// www.regulations.gov/document/CEQ-2018-00010001. 35 See Docket No. CEQ–2019–0003, https:// www.regulations.gov/document/CEQ-2019-00030001. 36 Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43304 (July 16, 2020) (‘‘2020 Final Rule’’). 37 Wild Va. v. Council on Env’t Quality, No. 3:20cv45 (W.D. Va. 2020); Env’t Justice Health All. v. Council on Env’t Quality, No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v. Council on Env’t Quality, No. 3:20cv5199 (N.D. Cal. 2020); California v. Council on Env’t Quality, No. 3:20cv06057 (N.D. Cal. 2020); Iowa Citizens for Cmty. Improvement v. Council on Env’t Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in The Clinch Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2020), plaintiffs challenged the U.S. Forest Service’s NEPA implementing procedures, which established new categorical exclusions, and, relatedly, the 2020 rule’s provisions on categorical exclusions. 38 Wild Va. v. Council on Env’t Quality, 544 F. Supp. 3d 620 (W.D. Va. 2021). 39 Wild Va. v. Council on Env’t Quality, 56 F.4th 281 (4th Cir. 2022). E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49928 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules E. CEQ’s Review of the 2020 Regulations On January 20, 2021, President Biden issued E.O. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,40 to establish an administration policy to listen to the science; improve public health and protect our environment; ensure access to clean air and water; limit exposure to dangerous chemicals and pesticides; hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; reduce GHG emissions; bolster resilience to the impacts of climate change; restore and expand the Nation’s treasures and monuments; and prioritize both environmental justice and the creation of well-paying union jobs necessary to achieve these goals.41 The Executive Order calls for Federal agencies to review existing regulations issued between January 20, 2017, and January 20, 2021, for consistency with the policy it articulates and to take appropriate action.42 The Executive Order also revokes E.O. 13807 and directs agencies to take steps to rescind any rules or regulations implementing it.43 An accompanying White House fact sheet, published on January 20, 2021, specifically identified the 2020 regulations for CEQ’s review for consistency with E.O. 13990’s policy.44 Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the 2020 regulations and engaged in a multiphase rulemaking process to ensure that the NEPA implementing regulations provide for sound and efficient environmental review of Federal actions, including those actions integral to tackling the climate crisis, in a manner that enables meaningful public participation, provides for an expeditious process, discloses climate change-related effects, advances environmental justice, respects Tribal sovereignty, protects our Nation’s resources, and promotes better and more equitable environmental and community outcomes. First, CEQ issued an interim final rule on June 29, 2021, amending the requirement in 40 CFR 1507.3(b) for agencies to propose changes to existing agency-specific NEPA procedures by September 14, 2021, to make those procedures consistent with the 2020 40 86 41 Id. FR 7037 (Jan. 25, 2021). at sec. 1. 42 Id. 43 Id. at sec. 7. White House, Fact Sheet: List of Agency Actions for Review (Jan. 20, 2021), https:// www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agencyactions-for-review/. 44 The VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 regulations.45 CEQ extended the date by 2 years to avoid agencies proposing changes to agency-specific implementing procedures on a tight deadline to conform to regulations that are undergoing extensive review and would likely change in the near future. Next, on October 7, 2021, CEQ issued a ‘‘Phase 1’’ proposed rule to focus on a discrete set of provisions designed to restore three elements of the 1978 regulations.46 CEQ proposed changes to the provisions it considered most critical to address, revise, and clarify while completing the comprehensive review. First, CEQ proposed to revise 40 CFR 1502.13 to clarify that agencies have discretion to consider a variety of factors when assessing an application for authorization by removing a requirement that an agency base the purpose and need on the goals of an applicant and the agency’s statutory authority. CEQ also proposed a conforming edit to the definition of ‘‘reasonable alternatives’’ in 40 CFR 1508.1(z). Second, CEQ proposed to remove language in 40 CFR 1507.3 that could be construed to limit agencies’ flexibility to develop or revise procedures to implement NEPA specific to their programs and functions that may go beyond CEQ’s regulatory requirements. Finally, CEQ proposed to revise the definition of ‘‘effects’’ in 40 CFR 1508.1(g) to restore the substance of the definitions of ‘‘effects’’ and ‘‘cumulative impacts’’ contained in the 1978 regulations. CEQ received 94,458 written comments in response to the proposed rule. CEQ issued a Phase 1 final rule on April 20, 2022,47 which finalized the proposed revisions. CEQ received a variety of comments on the Phase 1 proposed rule suggesting additional provisions or changes that CEQ should consider as part of the Phase 2 rulemaking.48 For example, commenters requested that CEQ strengthen public participation requirements and encourage more robust public engagement; better incorporate environmental justice and climate change considerations into the regulations; further address the climate 45 Deadline for Agencies to Propose Updates to National Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021). 46 National Environmental Policy Act Implementing Regulations Provisions, 86 FR 55757 (Oct. 7, 2021). 47 National Environmental Policy Act Implementing Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (‘‘Phase 1 Final Rule’’). 48 See CEQ, National Environmental Policy Act Implementing Regulations Revision Phase 1 Response to Comments (Apr. 2022) (‘‘Phase 1 Response to Comments’’), https:// www.regulations.gov/document/CEQ-2021-000239427. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 and biodiversity crises; modernize environmental review of renewable energy projects; and further refine definitions, including human environment, major Federal action, and effects. In addition, commenters suggested that CEQ address page and time limits; mitigation; tiering; CEs; and improved coordination among Federal, Tribal, State, and local agencies and governments. Additionally, many of the comments on the Phase 1 proposed rule’s changes to 40 CFR 1502.13 on purpose and need also included suggestions for changes to 40 CFR 1502.14 and the discussion of alternatives. Where appropriate, CEQ summarizes these Phase 1 comments as they relate to specific subsections of Section II of the preamble. Here, in this Phase 2 notice of proposed rulemaking (NPRM), CEQ initiates a broader rulemaking to revise, update, and modernize the NEPA implementing regulations. Informed by CEQ’s extensive experience implementing NEPA, CEQ proposes further revisions to ensure the NEPA process provides for efficient and effective environmental reviews that are guided by science and are consistent with the statute’s text and purpose; enhance clarity and certainty for Federal agencies, project proponents, and the public; inform the public about the potential environmental effects of Federal Government actions and enable full and fair public participation; and ultimately promote better informed Federal decisions that protect and enhance the quality of the human environment, including by ensuring climate change, environmental justice, and other environmental issues are fully accounted for in agencies’ decisionmaking processes. As part of CEQ’s review, CEQ engaged in extensive outreach with a wide variety of interested and experienced parties to solicit their feedback and recommendations on what new elements CEQ should consider adding; what elements from the 1978 regulations CEQ should consider restoring; what existing elements of the NEPA regulations CEQ should consider clarifying, revising, or removing; and what existing elements CEQ should retain in their current form. CEQ convened a Federal interagency working group made up of NEPA practitioners, attorneys, and other experts to hear and discuss their recommendations on a wide variety of issues in the NEPA regulations and more generally with the environmental review process. The Federal agency participants represented the broad array of NEPA practice and environmental expertise across the E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Government, including land management, infrastructure, resource conservation, climate, and environmental justice experts. CEQ also hosted or participated in over 60 meetings with external parties, such as environmental organizations, business and industry organizations (including timber, energy, air, grazing, mining, and transportation organizations), Tribal Nations, State governments, environmental justice organizations, academics, and labor organizations. Additionally, CEQ held a Tribal consultation specifically on the Phase 2 regulations and the updates to CEQ’s GHG guidance on November 12, 2021. CEQ considered the feedback received during these engagements in the development of this proposed rule and has included summaries of the external engagements in the docket. Finally, as discussed in Section I.B, CEQ relies on its extensive experience overseeing and implementing NEPA in the development of this rule. CEQ has over 50 years of experience advising Federal agencies on the implementation of NEPA. CEQ collaborates daily with Federal agencies on specific NEPA reviews, provides government-wide guidance on NEPA implementation, consults with agencies on the development of agency-specific NEPA implementing procedures and determines they conform with NEPA and the CEQ regulations, and advises the President on a vast array of environmental issues. This experience also enables CEQ to clarify the patchwork of fact-specific judicial decisions that have evolved under NEPA. This rulemaking seeks to bring clarity and predictability to Federal agencies and outside parties whose activities require Federal action and therefore trigger NEPA review, while also facilitating better environmental and social outcomes due to informed decision making. II. Summary of Proposed Rule This section summarizes CEQ’s proposed revisions to its NEPA implementing regulations and the rationale for the changes. CEQ’s proposed changes fall into five general categories. First, CEQ proposes revisions to implement the amendments to NEPA made by the FRA. Second, where CEQ determined it made sense to do so, CEQ proposes to amend provisions, which the 2020 regulations revised, to revert to the language from the 1978 regulations that was in effect for more than 40 years, subject to minor revisions for clarity. Third, CEQ proposes to remove certain provisions added by the 2020 rule that CEQ considers imprudent or legally VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 unsettled. Fourth, CEQ proposes to amend certain provisions to enhance consistency and provide clarity to improve the efficiency and effectiveness of the environmental review process. Fifth, CEQ proposes revisions to the regulations to implement decades of CEQ and agency experience implementing and complying with NEPA, foster science-based decision making—including decisions that account for climate change and environmental justice—improve the efficiency and effectiveness of the environmental review process, and better effectuate NEPA’s statutory purposes. CEQ is retaining many of the changes made in the 2020 rulemaking particularly where those changes codified longstanding practice or guidance or enhanced the efficiency and effectiveness of the NEPA process. In response to the Phase 1 proposed rule, CEQ received many comments on provisions not addressed in Phase 1. CEQ indicated in the Phase 1 final rule that it would consider such comments during the development of this Phase 2 rulemaking. CEQ has done so, and where applicable, this NPRM provides a high-level summary of the important issues raised in those public comments. While some comments have advocated for a straight return to the 1978 regulations, CEQ does not consider this to be the appropriate approach. As part of its review, CEQ evaluated the provisions of the 2020 regulations and sought feedback from NEPA experts and interested stakeholders to identify provisions that, as written, add value to the NEPA process or that require amendments to enhance clarity or improve efficiency and effectiveness. For example, CEQ identified for retention the inclusion of Tribal interests throughout the regulations, the integration of mechanisms to facilitate better interagency cooperation, and the reorganization and modernization of provisions addressing certain elements of the process to make the regulations easier to understand and follow. CEQ considers it important that the regulations meet current goals and objectives, including to promote the development of NEPA documents that are concise but also include the information needed to inform decision makers and reflect public input. CEQ’s proposed revisions to the regulations emphasize the importance of transparency and public engagement, reflecting modern practices and changing needs, while also recognizing the discretion and flexibility that Federal agencies need to respond and move efficiently and effectively through the NEPA process. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 49929 A. Proposed Changes Throughout Parts 1500–1508 49 CEQ proposes several revisions throughout parts 1500–1508 to provide consistency, improve clarity, and correct grammatical errors. Improved clarity reduces confusion and results in more consistent implementation, thereby improving the efficiency of the NEPA process and reducing the risk of litigation. For greater consistency and clarity, CEQ proposes to change the word ‘‘impact’’ to ‘‘effect’’ where this term is used as a noun because these two words are synonymous. Throughout the regulations, to improve clarity, CEQ proposes to use the word ‘‘significant’’ only to modify the term ‘‘effects.’’ Accordingly, throughout the regulations, where ‘‘significant’’ modifies a word other than ‘‘effects,’’ CEQ proposes to replace ‘‘significant’’ with another accurate adjective, typically ‘‘important’’ or ‘‘substantial,’’ which have been used throughout the CEQ regulations since 1978. In doing so, CEQ seeks to avoid confusion about what ‘‘significant’’ means in these other contexts by limiting its use to describing ‘‘significant effects.’’ The one exception to this change would be that CEQ proposes for the regulations to continue to refer to a finding of no significant impact (FONSI), which CEQ would leave intact because the concept of a FONSI is entrenched in practice and case law. CEQ heard from public comments and agency feedback on the Phase 1 rulemaking that use of the word ‘‘significant’’ in phrases such as ‘‘significant issues’’ or ‘‘significant actions’’ creates confusion on what the word ‘‘significant’’ means.50 The proposed change also aligns with the proposed definition of ‘‘significant effects’’ in § 1508.1(jj),51 as discussed in section II.J.13. CEQ does not intend these proposed changes to substantively change the meaning of the provisions. For clarity, CEQ proposes to change ‘‘statement’’ to ‘‘environmental impact statement’’ and ‘‘assessment’’ to ‘‘environmental assessment’’ where the regulations only use the short form in the paragraph. See, e.g., §§ 1502.3 and 1506.3(e)(1) through (e)(3). 49 CEQ prepared a redline of this proposed rule’s changes to the current CEQ regulations and provided it in the docket as a tool to facilitate public review of this NPRM. 50 Phase 1 Response to Comments, supra note 48, at 120–21. 51 In the preamble, CEQ uses the section symbol (§ ) to refer to the proposed regulations as set forth in this NPRM and 40 CFR to refer to the current CEQ regulations as set forth in 40 CFR parts 1500– 1508. When referencing specific regulatory sections in place prior to the 2020 final rule, CEQ uses 40 CFR but adds ‘‘(2019).’’ E:\FR\FM\31JYP3.SGM 31JYP3 49930 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules CEQ also proposes to make grammatical corrections or other edits throughout the regulations where CEQ considers the changes necessary for the reader to understand fully the meaning of the sentences. Finally, CEQ proposes to update the authorities for each part, update the references to NEPA as amended by the FRA, and fix internal cross references to other sections of the regulations throughout to follow the correct Federal Register format. ddrumheller on DSK120RN23PROD with PROPOSALS3 B. Proposed Revisions To Update Part 1500, Purpose and Policy 1. Purpose (§ 1500.1) and Policy (§ 1500.2) Consistent with the approach taken in the 1978 regulations, CEQ proposes to address the purpose of the CEQ regulations in § 1500.1, ‘‘Purpose,’’ and reinstate § 1500.2, ‘‘Policy.’’ In § 1500.1, CEQ proposes to restore much of the language from the 1978 regulations and further incorporate the policies Congress established in the NEPA statute. CEQ is proposing these changes to restore text regarding NEPA’s purpose and goals, placing the regulations into their broader context. CEQ also finds value in restating the policies of the Act within the regulations, which would improve readability by avoiding the need for cross references to material outside the four corners of the regulations. Specifically, CEQ proposes to revise 40 CFR 1500.1(a) by subdividing it into § 1500.1(a), (a)(1), and (a)(2), and restoring language from the 1978 regulations that states the principles and policies Congress established in sections 101 and 102 of NEPA. CEQ is proposing to remove the language that describes NEPA as a purely procedural statute because, while correct, CEQ considers that language to be an inappropriately narrow view of NEPA’s purpose that minimizes some of the broader goals of NEPA described in section I.A. While CEQ agrees that a NEPA analysis does not dictate a particular outcome by the decision maker, Congress established the NEPA process to provide for better informed Federal decision making and improve environmental outcomes, and those goals are not fulfilled if the NEPA analysis is treated merely as a checkthe-box exercise. In short, CEQ does not consider it necessary to repeatedly emphasize the procedural nature of NEPA, which may suggest that NEPA mandates a rote paperwork exercise and de-emphasizes the Act’s larger goals and purposes. Instead, CEQ remains cognizant of the goals Congress intended to achieve through the NEPA process in developing its implementing VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 regulations, and agencies should carry out NEPA’s procedural requirements in a manner faithful to the purposes of the statute. In § 1500.1(a)(1), CEQ proposes to retain the sentence summarizing section 101(a) of NEPA and add a second sentence summarizing section 101(b) to clarify that agencies also should accomplish the purposes described in section 101(b) through NEPA reviews. Including this language in § 1500.1(a)(1) would help agencies understand what the regulations refer to when the regulations direct or encourage agencies to act in a manner consistent with the purposes or policies of the Act. See, e.g., §§ 1500.2(a), 1500.6, 1501.1(a), 1502.1(a), and 1507.3(b). In § 1500.1(a)(2), CEQ proposes to restore generally the language of the 1978 regulations stating that the purpose of the regulations is to convey what agencies should and must do to comply with NEPA to achieve its purpose. CEQ proposes to strike the language added by the 2020 rule that NEPA requires Federal agencies to provide a detailed statement for major Federal actions, that the purpose and function of NEPA is satisfied if agencies have considered environmental information and informed the public, and that NEPA does not mandate particular results. While it is true that NEPA does not mandate particular results in specific decision-making processes, this language unduly minimizes Congress’s understanding that procedures ensuring that agencies analyze, consider, and disclose environmental effects will lead to better substantive outcomes, and is inconsistent with Congress’s statements of policy in the NEPA statute. In § 1500.1(b), CEQ proposes to strike the first two sentences added by the 2020 rule and restore language from the 1978 regulations emphasizing the importance of the early identification of high-quality information that is relevant to a decision. Early identification and consideration of issues using highquality information have long been fundamental to the NEPA process, particularly because this facilitates comprehensive analysis of alternatives and timely and efficient decision making, and CEQ considers it important to emphasize these considerations in this section. The proposed changes also emphasize that the environmental information that agencies use in the NEPA process should be high-quality, science-based, and accessible. CEQ proposes to strike the first two sentences of this paragraph, which the 2020 rule added, because they also provide an unnecessarily narrow view of the PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 purposes of NEPA and its implementing regulations. Finally, CEQ proposes in a new § 1500.1(c) to restore text from the 1978 regulations, most of which the 2020 rule deleted, emphasizing the importance of NEPA reviews for informed decision making. The proposed changes to § 1500.1 recognize that the procedural provisions of NEPA are intended to further the purpose and goals of the Act. One of those goals is to make improved and sound government decisions. The 2020 rule struck 40 CFR 1500.2 (2019) and integrated policy language into 40 CFR 1500.1 (2020).52 CEQ is proposing to once again provide for two sections, renaming § 1500.1 to ‘‘Purpose’’ and restoring § 1500.2 as ‘‘Policy.’’ CEQ is proposing to restore with some updates the language of the 1978 regulations to § 1500.2. In § 1500.2(a), CEQ proposes to restore the 1978 language directing agencies to interpret their authorities consistent with the policies of NEPA and the CEQ regulations to the fullest extent possible. Paragraph (b) would restore with clarifying edits the 1978 language directing agencies to implement procedures that facilitate a meaningful NEPA process to the fullest extent possible and emphasize that environmental documents should be concise and clear. Paragraph (c) would direct agencies to integrate NEPA with other planning and environmental review requirements to the fullest extent possible, which promotes efficient processes. CEQ proposes to modernize language from the 1978 regulations in paragraph (d) to emphasize public engagement, including with communities with environmental justice concerns, which often include communities of color, low-income communities, and indigenous communities, and Tribal communities. CEQ views an emphasis on engagement with such communities to be important because agencies have not always meaningfully engaged with them and such communities have been disproportionately and adversely affected by certain Federal activities. In proposing to make this change to emphasize public engagement, CEQ notes that the obligation to consult with Tribal Nations on a nation-to-nation basis is distinct from the public engagement requirements of NEPA.53 CEQ invites comment on whether 52 2020 Final Rule, supra note 36, at 43316–17. E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 9, 2000); Presidential Memorandum, Tribal Consultation and Strengthening Nation-to-Nation Relationships, 86 FR 7491 (Jan. 29, 2021), https:// www.federalregister.gov/d/2021-02075. 53 See E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 additional changes to the NEPA regulations would be appropriate in light of the obligation for Tribal consultation. In paragraph (e), CEQ proposes to restore language from the 1978 regulations regarding the identification of alternatives that avoid or minimize adverse effects. CEQ is proposing to add examples of such alternatives, including those that will reduce climate changerelated effects or address effects that disproportionately affect communities with environmental justice concerns consistent with E.O. 12898 and E.O. 14096, to highlight the importance of considering such effects in environmental documents, consistent with NEPA’s requirements, including the consideration of high-quality information, such as best available science and data.54 Finally, in paragraph (f), CEQ proposes to restore the direction from the 1978 regulations to use all practicable means to restore and enhance the environment, consistent with the policies of NEPA. These proposed restorations and additions to § 1500.2(d), (e), and (f) reflect longstanding practice among Federal agencies and align with NEPA’s statutory policies, including to avoid environmental degradation, preserve historic, cultural, and natural resources, and ‘‘attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.’’ 42 U.S.C. 4331(b). The 2020 rule removed the Policy section stating that it was duplicative of other sections.55 However, CEQ proposes to restore and update this section because a robust articulation of the Act’s policy principles is fundamental to the NEPA process. CEQ also considers it helpful to agency practitioners and the public to have a consolidated listing of policy objectives regardless of whether other sections of the regulations address those objectives. 54 Consideration of environmental justice and climate change-related effects has long been part of NEPA analysis. See, e.g., Environmental Justice Guidance, supra note 6, and Ctr. For Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008). See also 42 U.S.C. 4331(b) (‘‘[I]t is the continuing responsibility of the Federal Government to . . . assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . . [and to] maintain, wherever possible, an environment which supports diversity and variety of individual choice’’ (emphasis added); 42 U.S.C. 4332(2)(F) (‘‘all agencies of the Federal Government shall . . . recognize the worldwide and long-range character of environmental problems’’). 55 2020 Final Rule, supra note 36 at 43317. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 2. NEPA Compliance (§ 1500.3) CEQ proposes to remove from § 1500.3 provisions added by the 2020 rule regarding exhaustion and remedies, restore some language from the 1978 regulations removed by the 2020 rule, and make other conforming edits. Specifically, in § 1500.3(a), CEQ proposes to remove the phrase ‘‘except where compliance would be inconsistent with other statutory requirements’’ because this is addressed by § 1500.6. CEQ also proposes to remove the reference to E.O. 13807, which E.O. 13990 revoked, as well as the reference to section 309 of the Clean Air Act because this provision is implemented by EPA. CEQ proposes to delete 40 CFR 1500.3(b), including its paragraphs. The process established by the 2020 rule provides that first, an agency must request in its notice of intent (NOI) comments on all relevant information, studies, and analyses on potential alternatives and effects. 40 CFR 1500.3(b)(1). Second, the agency must summarize all the information it receives in the draft EIS and specifically seek comment on it. 40 CFR 1500.3(b)(2), 1502.17, 1503.1(a)(3). Third, decision makers must certify in the record of decision (ROD) that they considered all the alternatives, information, and analyses submitted by public commenters. 40 CFR 1500.3(b)(4), 1505.2(b). Fourth, any comments not submitted within the comment period are considered forfeited as unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b). By adding this exhaustion process, the 2020 rule aimed to limit legal challenges and judicial remedies.56 CEQ proposes to remove this process because it establishes an inappropriately stringent exhaustion requirement for public commenters and agencies. It is unsettled whether CEQ has the authority under NEPA to set out an exhaustion requirement that bars parties from bringing claims on the grounds that an agency’s compliance with NEPA violated the APA, pursuant to 5 U.S.C. 702. While the 2020 rule correctly identifies instances in which courts have ruled that parties may not raise legal claims based on issues that they themselves did not raise during the comment period,57 other courts have Final Rule, supra note 36, at 43317–18. (citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004); Karst Env’t. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 F. App’x 421 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA, 217 F.3d 1246 (9th Cir. 2000); Nat’l Ass’n of Mfrs. v. U.S. Dep’t of the Interior, 134 F.3d 1095 (D.C. Cir. 1998)). PO 00000 56 2020 57 Id. Frm 00009 Fmt 4701 Sfmt 4702 49931 sometimes ruled that a plaintiff can bring claims where another party raised an issue in comments or where the agency should have identified an issue on its own. Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of Interior, 929 F. Supp. 2d 1039, 1045–46 (E.D. Cal. 2013); Wyo. Lodging and Rest. Ass’n v. U.S. Dep’t of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo. 2005); see Pub. Citizen, 541 U.S. at 765 (noting that ‘‘[T]he agency bears the primary responsibility to ensure that it complies with NEPA . . . and an EA’s or an EIS’ flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action’’). Because the fundamental question raised by these cases is the availability of a cause of action under the APA, and not a question of interpreting NEPA, CEQ considers this question more appropriate for the courts to determine. Further, nothing in this revision would limit the positions the Federal Government may take regarding whether, based on the facts of a particular case, a particular issue has been forfeited by a party’s failure to raise it before the agency, and removing this provision does not suggest that a party should not be held to have forfeited an issue by failing to raise it. By deleting the exhaustion requirements, CEQ does not take the position that plaintiffs may raise new and previously unraised issues in litigation. Rather, CEQ considers this to be a question of general administrative law and therefore the courts to be the proper venue to determine whether any particular claim can proceed. Moreover, the exhaustion requirement established in the 2020 rule is at odds with longstanding agency practice. While courts have ruled that agencies are not required to do so, see, e.g., Pub. Citizen, 541 U.S. at 764–65 (finding that where a party does not raise an objection in their comments on an EA, the party forfeits any objection to the EA on that ground), agencies have discretion to consider and respond to comments submitted after a comment period ends. The exhaustion requirement established in the 2020 regulations could encourage agencies to disregard important information presented to the agency shortly after a comment period closes, and such a formalistic approach would not advance NEPA’s goal of informed decision making. To be clear, this change does not relieve parties interested in participating in, commenting on, or ultimately challenging a NEPA analysis E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49932 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules of the obligation to ‘‘structure their participation so that it is meaningful.’’ Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978). As CEQ’s regulations have made clear since 1978, parties must provide comments that are as specific as possible to enable agencies to consider and address information during the decision-making processes. See 40 CFR 1503.3(a). While commenters should follow the appropriate procedures and time limits, the revisions would provide agencies flexibility to address unusual circumstances. CEQ proposes to redesignate 40 CFR 1500.3(c), ‘‘Review of NEPA compliance,’’ as paragraph (b) and move to paragraph (b) the sentence from 40 CFR 1500.3(d) regarding harmless error for minor, non-substantive errors, which is a concept that has been in place since the 1978 regulations. CEQ proposes to delete the remaining text of 40 CFR 1500.3(c), removing language that noncompliance with NEPA and the CEQ regulations should be resolved as expeditiously as possible. While CEQ agrees with expeditious resolution of issues, CEQ considers this inappropriate for regulatory text as these regulations cannot compel members of the public or courts to resolve NEPA disputes. Rather, the regulations promote public engagement, appropriate analysis, and informed decision making to facilitate NEPA compliance and avoid such disputes from the outset. CEQ also proposes to strike the last sentence in this paragraph regarding bonding and other security requirements, which relates to litigation over an agency action and not the NEPA process itself. It is unsettled whether NEPA provides agencies with authority to promulgate procedures that require plaintiffs to post bonds in litigation brought under the APA. In any case, CEQ does not consider it appropriate to address this issue in the NEPA implementing regulations. With the exception of the last sentence in 40 CFR 1500.3(d) regarding remedies, which CEQ proposes to move, as discussed earlier in this section, CEQ proposes to delete the remainder of the paragraph. It is questionable whether CEQ has the authority to direct courts about what remedies are available in litigation brought under the APA to challenge NEPA compliance and, in any case, CEQ considers the 2020 rule’s addition of this paragraph to be inappropriate. CEQ considers courts to be in the best position to determine the appropriate remedies when a plaintiff successfully challenges an agency’s NEPA compliance. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 Finally, CEQ proposes to redesignate 40 CFR 1500.3(e), ‘‘Severability,’’ as paragraph (c), without change. CEQ intends these regulations to be severable. The proposed rule would amend existing regulations and the NEPA regulations could be functionally implemented if each revision proposed in this rule occurred on its own or in combination with any other subset of proposed revisions. As a result, if a court were to invalidate any particular provision of this rule, allowing the remainder of the rule to remain in effect would still result in a functional NEPA review process. This approach to severability is the same as the approach that CEQ took when it promulgated the 2020 regulations, because those amendments similarly could be layered onto the 1978 regulations individually without disrupting the overarching NEPA review process. 3. Concise and Informative Environmental Documents (§ 1500.4) CEQ proposes to revise § 1500.4 to emphasize the important values served by concise and informative NEPA documents beyond merely reducing paperwork, such as promoting informed and efficient decision making and facilitating meaningful public participation. Section 1500.4 lists examples of provisions in the CEQ regulations that provide mechanisms by which agencies may prepare concise and informative environmental documents. Each paragraph listed in § 1500.4 includes cross references to regulatory provisions that further the goal of preparing concise and informative documents. To that end, CEQ proposes to retitle § 1500.4 from ‘‘Reducing paperwork’’ to ‘‘Concise and informative environmental documents’’ and revise the introductory text to clarify that the paragraphs in this section provide examples of the mechanisms in the regulations that agencies can use to prepare concise and informative environmental documents. CEQ proposes to remove paragraphs (a) and (b) from 40 CFR 1500.4 because they are redundant with § 1500.5(a) and (b) and are more appropriately addressed in the section on reducing delay, as well as paragraph (d) because it is addressed in the revised introductory text. CEQ proposes to redesignate 40 CFR 1500.4(c) and (e) through (q) as § 1500.4 (a) and (b) through (n), respectively. CEQ proposes to add ‘‘e.g.,’’ to the cross references listed in § 1500.4(b), (c), and (e) to clarify that they are nonexclusive examples of how agencies can briefly discuss unimportant issues, write in plain language, and reduce PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 emphasis on background material. CEQ would update the cross references to other sections of the subchapter to reflect proposed changes elsewhere in the regulations. In paragraphs (c) and (e), CEQ proposes to expand the reference from EISs to all environmental documents, as the concepts discussed are more broadly applicable. Additionally, in paragraph (e), CEQ proposes to insert ‘‘most’’ before ‘‘useful’’ to clarify that the environmental documents should not contain portions that are useless. In § 1500.4(f), CEQ proposes to replace ‘‘significant’’ with ‘‘important’’ and insert ‘‘unimportant’’ to modify ‘‘issues’’ consistent with our proposal to only use ‘‘significant’’ to modify ‘‘effects.’’ CEQ also proposes to clarify in paragraph (f) that scoping may apply to EAs. Finally, CEQ proposes to expand paragraph (h), regarding programmatic review and tiering, to include EAs to align with the proposed changes to § 1501.11. Finally, in paragraph (m), CEQ proposes to insert ‘‘Federal’’ before ‘‘agency’’ consistent with § 1506.3, which allows adoption of NEPA documents prepared by other Federal agencies. Concise and informational documents make the NEPA process more accessible and transparent to the public, allowing the public an opportunity to contribute to the NEPA process. The changes proposed in § 1500.4 align the regulations with the intent of NEPA to allow the public to provide input, as well as CEQ’s stated goal of increasing transparency, while providing agencies flexibility on how to achieve concise and informative documents. These proposed changes aim to encourage the preparation of documents that can be easily read and understood, which in turn promote informed and efficient decision making. 4. Efficient Process (§ 1500.5) CEQ proposes minor changes to § 1500.5 to provide clarity and flexibility regarding mechanisms by which agencies can apply the CEQ regulations to improve efficiency in the environmental review process. CEQ proposes these changes to acknowledge that unanticipated events and circumstances beyond agency control may delay the environmental review process, and to recognize that, while these approaches may improve efficiency for many NEPA reviews, they could be inefficient for others. To that end, CEQ proposes to retitle § 1500.5 from ‘‘Reducing delay’’ to ‘‘Efficient process’’ and revise the introductory text to reflect the new title. The other proposed changes include adding EAs E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 to paragraph (a) to make the provision consistent with the definition of ‘‘categorical exclusion;’’ changing ‘‘real issues’’ to ‘‘important issues that required detailed analysis’’ in paragraph (f) for consistency with § 1502.4; and expanding the scope of paragraph (h) from EISs to environmental documents to make clear that, regardless of the level of NEPA review, agencies should prepare environmental documents early in the process. Proposed § 1500.5 recognizes the importance of timely information for decision making and encourages agencies to implement the 12 listed mechanisms to achieve timely and efficient NEPA processes. 5. Agency Authority (§ 1500.6) In § 1500.6, CEQ proposes to revise the second sentence to remove the qualification added in the 2020 rule that agencies must ensure full compliance with the Act ‘‘as interpreted by’’ these regulations and instead state that agencies must review and revise their procedures to ensure compliance with NEPA and the CEQ regulations. The phrase added in 2020 could be read to indicate that agencies have no freestanding requirement to comply with NEPA itself, which would be untrue. CEQ also considers the proposed change necessary for consistency with § 1507.3(b), which CEQ revised in the Phase 1 rulemaking to make clear that, while agency procedures must be consistent with the CEQ regulations, agencies have discretion and flexibility to develop procedures beyond the CEQ regulatory requirements, enabling agencies to address their specific programs, statutory mandates, and the contexts in which they operate. CEQ proposes to make conforming edits in §§ 1502.2(d) and 1502.9(b) to remove this phrase. In the third sentence, CEQ proposes to remove the cross-reference to § 1501.1 for consistency with the proposed modifications to § 1501.1 and restore the intent of language from the 1978 regulations, with modification, explaining that the phrase ‘‘to the fullest extent possible’’ means that each agency must comply with section 102 of NEPA unless an agency activity, decision, or action is exempted by law or compliance with NEPA is impossible. Finally, CEQ proposes to strike the last sentence stating that the CEQ regulations do not limit an agency’s other authorities or legal responsibilities, which the 2020 rule added to acknowledge the possibility of different statutory authorities with different requirements. While the 2020 regulations contended that this sentence was added for consistency with E.O. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 11514, as amended by section 2(g) of E.O. 11991, CEQ considers the sentence superfluous and unnecessarily vague. As stated in the new proposed text, agencies must comply with NEPA in carrying out an activity, decision, or action unless exempted by law or compliance with NEPA is impossible. That description would reflect accurately the directive that Federal agencies comply with the CEQ regulations ‘‘except where such compliance would be inconsistent with statutory requirements.’’ 58 CEQ’s proposed revisions to § 1500.6 would clarify that agencies have an independent responsibility to ensure compliance with NEPA and a duty to harmonize NEPA with their other statutory requirements and authorities to the maximum extent possible. This is true as a general matter of statutory construction as well as under the specific statutory mandate of section 102 of NEPA, which requires that ‘‘the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act].’’ 42 U.S.C. 4332(1). Therefore, compliance with NEPA is only impossible within the meaning of this subsection when the conflict between another statute and the requirements of NEPA are clear, unavoidable, and irreconcilable. Absent exemption by Congress or a court, an irreconcilable conflict exists only if the agency’s authorizing statute grants it no discretion to comply with NEPA while also satisfying the statutory mandate. C. Proposed Revisions To Update Part 1501, NEPA and Agency Planning CEQ is proposing substantive revisions to all sections in part 1501 except § 1501.2, ‘‘Apply NEPA early in the process,’’ to which CEQ proposes minor edits for readability that CEQ considers clarifying and nonsubstantive. CEQ invites comment on whether it should make any substantive changes to that section or other changes to part 1501. 1. Purpose (§ 1501.1) CEQ proposes to revert and retitle § 1501.1 to ‘‘Purpose,’’ to emphasize the goals of part 1501 consistent with the approach in the 1978 regulations. As discussed further below, CEQ proposes to move some of the NEPA thresholds language in 40 CFR 1501.1 to § 1503.1(a), strike the remaining text, and replace it with new provisions similar to those in the 1978 regulations. PO 00000 58 2020 Final Rule, supra note 36, at 43319. Frm 00011 Fmt 4701 Sfmt 4702 49933 In § 1501.1(a), CEQ proposes to highlight the importance of integrating NEPA early in agency planning processes by generally restoring the language from the 1978 regulations, while also emphasizing that this promotes an efficient process and reduces delay. Restoring this language is consistent with section 102(2)(C) of NEPA and the objective to build into agency decision making, beginning at the earliest point, an appropriate consideration of the environmental aspects of a proposed action. 42 U.S.C. 4332(2)(C). CEQ proposes in paragraph (b) to emphasize early engagement in the environmental review process consistent with other changes proposed throughout the regulations to elevate the importance of early coordination and engagement throughout the NEPA process to identify and address potential issues early in a decision-making process, thereby helping to reduce the overall time required to approve a project and improving outcomes. In new paragraph (c), CEQ proposes to restore text from the 1978 regulations regarding expeditious resolution of interagency disputes as promoted in §§ 1501.7 and 1501.8. Paragraph (d) also would restore the direction to identify the scope of the proposed action and important environmental issues consistent with § 1501.3, thereby enhancing efficiency. Finally, paragraph (e) would highlight the importance of schedules consistent with § 1501.10, which includes provisions requiring agencies to develop a schedule for all environmental reviews and authorizations, as well as §§ 1501.7 and 1501.8, which promote interagency coordination including with respect to schedules. As discussed further in section II.C.2, CEQ proposes to combine the threshold considerations provision with the process to determine the appropriate level of NEPA review in § 1501.3 by moving 40 CFR 1501.1(a)(1), (2), (4), and (5) to proposed § 1501.3(a)(1), (2), (4), and (4)(ii), respectively, and striking the remaining paragraphs. The 2020 regulations replaced the purpose section in 40 CFR 1501.1 with a list of factors agencies should consider in assessing whether NEPA applies or is otherwise fulfilled for a proposed activity or decision, and allows agencies to make these threshold considerations pursuant to their agency NEPA procedures or on an individual basis. CEQ proposes to delete two of the threshold factors currently in 40 CFR 1501.1(a). First, CEQ proposes to delete the factor currently listed in 40 CFR 1501.1(a)(3), inconsistency with Congressional intent expressed in another statute. Upon further E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49934 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules consideration, this factor may inadequately account for agencies’ responsibility to harmonize NEPA with other statutes, as discussed further in section II.C.2. As discussed in section II.B.5, the regulations provide that an agency should determine if a statute or court exempts an action from NEPA or if compliance with NEPA and another statute would be impossible; if not, the agency must comply with NEPA. To the extent the factor suggests that Congress’s intent regarding NEPA compliance involves considerations other than those two determinations, the factor is incorrect. Second, CEQ proposes to strike the factor in 40 CFR 1501.1(a)(6) regarding functional equivalence. While certain Environmental Protection Agency (EPA) actions are explicitly exempted from NEPA’s environmental review requirements, and courts have found other EPA-administered statutes to be functionally equivalent or otherwise exempt, CEQ considers this language added to the 2020 rule to go beyond the scope of the NEPA statute and case law because the language can be construed to expand functional equivalence beyond the narrow contexts in which it has been recognized. See, e.g., 15 U.S.C. 793(c)(1) (exempting EPA actions under the Clean Air Act); 33 U.S.C. 1371(c)(1) (exempting most EPA actions under the Clean Water Act); Env’t Def. Fund, Inc. v. EPA, 489 F.2d 1247, 1256–57 (D.C. Cir. 1973) (exempting agency actions under FIFRA); W. Neb. Res. Council v. U.S. Env’t Prot. Agency, 943 F.2d 867, 871–72 (8th Cir. 1991) (noting exemptions under the Safe Drinking Water Act). CEQ considers the more appropriate and prudent approach is for agencies to establish mechanisms in their agency NEPA procedures to align processes and requirements from other environmental laws with the NEPA process. CEQ proposes to eliminate the current language in 40 CFR 1501.1(b) allowing agencies to make threshold determinations individually or in their NEPA procedures because CEQ proposes to move the consideration of thresholds into § 1501.3 to consolidate the steps agencies should take to determine whether NEPA applies and, if so, what level of NEPA review is appropriate. The language in 40 CFR 1501.1(b) is also redundant to language in § 1507.3(d)(1), which would provide that agency NEPA procedures may identify activities or decisions that are not subject to NEPA. CEQ proposes to remove as unnecessary 40 CFR 1501.1(b)(1) because agencies have discretion to consult with CEQ and have done so for decades on a wide variety VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 of matters, including on determining NEPA applicability, without such specific language in the CEQ regulations. Finally, CEQ proposes to eliminate 40 CFR 1501.1(b)(2) directing agencies to consult with another agency when they jointly administer a statute if they are making a threshold applicability determination. While CEQ agrees that consultation is a good practice in such circumstances, it does not consider such a requirement necessary for these regulations because consultation is best determined by the agencies involved. 2. Determine the Appropriate Level of NEPA Review (§ 1501.3) CEQ proposes substantive revisions to § 1501.3 to provide a more robust and consolidated description of the process agencies should use to determine the appropriate level of NEPA review, including addressing the threshold question of whether NEPA applies. CEQ also proposes clarifying edits, including adding paragraph headings to paragraphs (a) through (d). This revised provision would clarify the steps for assessing the appropriate level of NEPA review, facilitating a more efficient and predictable review process. First, as noted in section II.C.1, CEQ proposes to move 40 CFR 1501.1(a)(1) to a new § 1501.3(a), ‘‘Applicability,’’ and add a sentence requiring agencies to determine whether NEPA applies to a proposed activity or decision as a threshold matter. CEQ proposes this move because the inquiry into whether NEPA applies is central to determining the level of NEPA review and consolidating the steps in this process in one regulatory section would improve the clarity of the regulations. It is also consistent with the approach in section 106 of NEPA, which addresses threshold considerations. CEQ proposes to strike ‘‘or is otherwise fulfilled’’ in the moved text because, as discussed in section II.C.1, CEQ is proposing to remove the functional equivalence factor from the regulation. Second, CEQ proposes to move the threshold determination factors agencies should consider when determining whether NEPA applies, currently at 40 CFR 1501.1(a)(1) and (2), to § 1501.3(a)(1) and (2) respectively. CEQ proposes to align the text in paragraph (a)(1) with the language in § 1500.6, ‘‘exempted from NEPA by law,’’ and align the text in paragraph (a)(2) with the language in section 106(a)(3) of NEPA, changing ‘‘another statute’’ to ‘‘another provision of law’’ for consistency with the statutory text. Third, CEQ proposes a new factor in paragraph (a)(3) to address PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 circumstances other than those in which Congress or case law have exempted an activity from NEPA, to clarify that there must be an irreconcilable and fundamental conflict between complying with a statutory provision and complying with NEPA—i.e., the other statutory provision must make NEPA compliance impossible. This factor would be consistent with case law and longstanding principles of statutory construction that require statutes to be read in harmony when it is possible to do so. This approach also reflects the statutory requirement of section 102 of NEPA that agencies interpret and administer ‘‘the policies, regulations, and public laws of the United States’’ in accordance with NEPA’s policies and is consistent with CEQ’s proposed revisions to § 1500.6, ‘‘Agency Authority.’’ 42 U.S.C. 4332; see section II.B.5. Fourth, consistent with section 106(a)(1) and (4) of NEPA, CEQ proposes to move the threshold determination factors regarding whether the activity or decision is a major Federal action from 40 CFR 1501.1(a)(4) and (5), to § 1501.3(a)(4) and (a)(4)(ii), respectively. Consistent with section 106(a)(1) and (4) of NEPA, CEQ proposes to include whether an activity or decision is a final agency action or non-discretionary as subfactors of whether an activity or decision is a major Federal action in § 1501.3(a)(4) because these are also exclusions from the definition of a major Federal action. When agencies assess whether an activity or decision meets the definition of a major Federal action, agencies determine whether they have discretion to consider environmental effects consistent with § 1508.1(u). CEQ invites comment on whether it should make additional changes to § 1501.3(a) in light of the recently enacted provisions in section 106(a) regarding threshold determinations. Fifth, CEQ proposes to move, with clarifying edits, 40 CFR 1501.9(e), ‘‘Determination of scope,’’ to a new proposed § 1501.3(b), ‘‘Scope of action and analysis,’’ to provide the next step in determining the appropriate level of NEPA review—the scope of the proposed action and its potential effects. In addition, CEQ proposes moving into § 1501.3(b) one sentence from 40 CFR 1502.4(a) directing agencies to evaluate in a single NEPA review proposals sufficiently closely related to be considered a single action, as well as text from 40 CFR 1501.9(e)(1) regarding connected actions, which are closely related Federal activities or decisions that agencies should consider in a single NEPA document. CEQ proposes to move E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules 40 CFR 1501.9(e)(1)(i) through (e)(1)(iii) providing the types of connected actions into § 1501.3(b)(1)(i) through (b)(1)(iii), respectively. This longstanding principle from the 1978 regulations that agencies should not improperly segment their actions is relevant not only when agencies are preparing EISs; rather, it is critical for agencies to consider this as part of the determination whether to prepare an EA or apply a CE. CEQ proposes to consolidate this text into § 1501.3(b) because the determination of the scope of the action, including any connected actions, necessarily informs the appropriate level of NEPA review. While 40 CFR 1501.9(e) currently applies to the scope of EISs, CEQ’s proposed consolidation would clarify that this analysis is applicable not only to the scope of the environmental document itself but also to the determination of the level of NEPA document the agency must prepare. Because including this provision in § 1501.3 would make it applicable to environmental reviews other than EISs, CEQ proposes to strike the sentence that accompanied the text in 40 CFR 1502.4(a) directing the lead agency to determine the scope and significant issues for analysis in the EIS as part of the scoping process. CEQ would retain in § 1502.4(a), ‘‘Scoping,’’ the requirement that agencies determine the scope and significant issues for analysis in an EIS using an early and open process. CEQ proposes in § 1501.3(b)(1)(i) to likewise change ‘‘environmental impact statements’’ to ‘‘NEPA review.’’ In bringing the text from 40 CFR 1501.9(e) to § 1501.3(b), CEQ is proposing to strike 40 CFR 1501.9(e)(2) and (3) relating to alternatives and impacts, respectively. The current CEQ regulations and the proposed revisions in this NPRM address the analyses of alternatives and effects regarding both EISs (§§ 1502.14, 1502.15) and EAs (§ 1501.5(c)(2)(ii) and (c)(2)(iii)). It would be premature in the process, unnecessary, and unhelpful to address alternatives as part of determining the level of NEPA review. Sixth, CEQ proposes to redesignate 40 CFR 1501.3(a) as paragraph (c), title it ‘‘Levels of NEPA review,’’ and retain the existing paragraphs (1) through (3) without change. In paragraph (c), CEQ proposes to incorporate section 106(b)(3) of NEPA addressing the sources of information agencies may rely on when determining the appropriate level of NEPA review. While section 106(b)(3) only directly applies to an agency’s determination whether to prepare an EA or an EIS, CEQ views the approach to reliable data VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 and producing new research as consistent with longstanding practice and caselaw and appropriate to apply broadly to an agency’s determination of the appropriate level of NEPA review, including a determination that no review is required. This approach avoids creating an implication that an agency could be required to conduct new research in a broader range of circumstances when making threshold determinations outside of whether to prepare an EA or EIS, for example in considering whether a CE applies. CEQ invites comment on this approach. Seventh, CEQ proposes to redesignate 40 CFR 1501.3(b) as § 1501.3(d), title it ‘‘Significance determination—context and intensity,’’ and address factors agencies must consider in determining significance by restoring with some modifications the consideration of ‘‘context’’ and ‘‘intensity’’ from the 1978 regulations, which appeared in the definition of ‘‘significantly.’’ See 40 CFR 1508.27 (2019). Because this text provides direction on how agencies determine the significance of an effect, rather than a definition, this is a more appropriate location for this provision than § 1508.1. CEQ proposes to modify the introductory language in § 1501.3(d) by requiring agencies to consider the context of an action and the intensity of the effects when considering whether the proposed action’s effects are significant. CEQ proposes to strike the sentence requiring agencies to consider connected actions because this concept would be included in proposed paragraph (c). Paragraph (d)(1) would restore the consideration of the context of the proposed action as a standalone consideration. Specifically, CEQ proposes to restore language from the 1978 regulations requiring agencies to analyze the significance of an action in several contexts. The proposed provision also provides some examples of contexts for consideration. First, the provision proposes agencies should consider the characteristics of the relevant geographic area such as proximity to unique or sensitive resources or vulnerable communities. Such resources may include historic or cultural resources, Tribal sacred sites, and various types of ecologically sensitive areas. This proposal relates to the intensity factor proposed in (d)(2)(iii), which CEQ is proposing to restore from the 1978 regulations. CEQ is proposing to include it as a context factor as well since it relates to the setting of the proposed action. It also would encourage agencies to consider PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 49935 proximity to communities with environmental justice concerns. Second, CEQ proposes that agencies should consider the potential global, national, regional, and local contexts, which may be relevant depending on the scope of the action, consistent with the current regulations as well as the 1978 regulations. Third, agencies should consider the duration of the potential effects and whether they are anticipated to be short- or long-term. To that end, CEQ proposes to move and revise text providing that the consideration of short- and long-term effects is relevant to the context of a proposed action from current 40 CFR 1501.3(b)(2)(i) to paragraph (d)(1). The 2020 rule narrowed the ‘‘context’’ consideration to the potentially affected environment in determining significance, stating that this reframing relates more closely to physical, ecological, and socio-economic aspects of the environment.59 CEQ has reconsidered this approach and now finds it to be overly limiting. Agencies have decades of experience analyzing their actions within this broader framing of ‘‘context.’’ Moreover, this use of ‘‘context’’ is consistent with CEQ’s 2022 reinstatement of the concepts of indirect and cumulative effects. Additionally, the 2020 rule’s tying of significance to the affected environment, ‘‘usually’’ only in the local area,60 could be read as deemphasizing reasonably foreseeable effects beyond the immediate area of the action. The appropriate environment is the one that the agency has identified as the affected environment in § 1502.15, which can include the global, national, regional, and local environment. For example, leases for oil and gas extraction or natural gas pipelines have local effects, but also have reasonably foreseeable global indirect and cumulative effects related to GHG emissions. CEQ also proposes to reinstate ‘‘intensity’’ as a consideration in determining significance, which CEQ reframed in the 2020 rule as the ‘‘degree’’ of the action’s effects. In § 1501.3(d)(2), CEQ proposes to require agencies to assess the intensity of effects from an action and to provide a list of factors, some or all of which may apply to any given action, for agencies to consider in relation to one another, returning to the approach from 1978. In 2020, CEQ justified the removal of intensity as a consideration in part 59 2020 Final Rule, supra note 36, at 43322. CFR 1501.3(b)(1) (‘‘For instance, in the case of a site-specific action, significance would usually depend only upon the effects in the local area.’’) (emphasis added). 60 40 E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49936 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules based on the proposition that effects are not required to be intense or severe to be considered significant.61 However, the intensity factors that CEQ proposes to reinstate with modifications have long provided agencies with guidance in how the intensity of an action’s effects may inform the significance determination. CEQ does not consider ‘‘intense’’ to be a synonym for ‘‘significant;’’ rather, it points to factors to inform the determination of significance that are part of longstanding agency practice. CEQ also proposes to clarify that agencies should focus on adverse impacts in determinations of significance. This is consistent with NEPA’s policies and goals as set forth in section 101 of the statute. 42 U.S.C. 4331. Paragraph (d)(2)(i) would mirror the 1978 rule’s reference to beneficial effects with clarifying additions. CEQ proposes to state that only actions with significant adverse effects require an EIS. This is distinct from weighing beneficial effects against adverse effects to determine that an action’s effects on the whole are not significant. Rather, this statement reflects the fact that an action with only beneficial effects and no significant adverse effects does not require an EIS, consistent with CEQ’s proposed revisions to § 1501.3(d)(2), regarding the meaning of intensity. CEQ proposes to add to paragraph (d)(2)(i) clarification that agencies should consider the duration of effects and provide an example of an action with short-term adverse effects but longterm beneficial effects. While significant adverse effects may exist even if the agency considers that on balance the effects of the action will be beneficial, the agency should consider any related short- and long-term effects in the same effect category together in evaluating intensity. For example, an agency should consider short-term construction-related GHG emissions from a renewable energy project in light of long-term reductions in GHG emissions when determining the overall intensity of effects. In this situation, the agency could reasonably determine that the climate effects of the proposed action would not be significantly adverse, and therefore an EIS would not be required. As another example, a forest restoration project may have a short-term adverse effect to a species by displacing it from the area while the project is carried out but have long-term beneficial effects to the species by reducing the risk that a severe wildfire will destroy the habitat altogether. An agency should consider both of these 61 2020 Final Rule, supra note 36, at 43322. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 effects in assessing whether the action significantly affects the species, and may determine that the overall effects on the species would not be significantly adverse and therefore would not require an EIS. In paragraph (d)(2)(ii), CEQ proposes to make a clarifying edit to the factor relating to the action’s effects on health and safety by adding language indicating that the relevant consideration is ‘‘the degree to which’’ the proposed action may ‘‘adversely’’ affect public health and safety. CEQ proposes to add in paragraph (d)(2)(iii) a factor to consider the degree to which the proposed action may adversely affect unique characteristics of the geographic area such as historic or cultural resources, Tribal sacred sites, parkland, and various types of ecologically sensitive areas. This would reinstate a factor from the 1978 regulations, with clarifying edits, which agencies have considered for decades. As noted earlier in this section, CEQ proposes to use the wording from the 1978 factor on unique characteristics because it is a context consideration. Consideration of this factor is consistent with both the definition of effects (§ 1508.1(g)) and the policies and goals of NEPA. 42 U.S.C. 4331. In paragraph (d)(2)(iv), CEQ proposes to make a clarifying edit to the factor in 40 CFR 1501.3(b)(2)(iv) relating to actions that may violate Federal, State, Tribal, or local law by adding reference to ‘‘other requirements.’’ CEQ also proposes to include inconsistencies with policies designed for protection of the environment because agencies should not necessarily limit their inquiry to statutory requirements. Of course, it may be appropriate to give relatively more weight to whether the action threatens a law imposed for environmental protection as opposed to a policy, but policies imposed for the protection of clean air, clean water, or species conservation, for example, may nonetheless be relevant in evaluating intensity. CEQ invites comment on the inclusion of policies in this provision and whether the regulations should reference specific categories of policies. Next, CEQ proposes to add paragraph (d)(2)(v) to consider the degree to which effects are highly uncertain. The 1978 regulations included factors for ‘‘controversial’’ effects and those that are ‘‘highly uncertain or involve unique or unknown risks.’’ CEQ proposes to restore a modified version of this concept that makes clear that the uncertainty of an effect is the appropriate consideration, and not whether an action is controversial. While a legitimate disagreement on PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 technical grounds may relate to uncertainty, this approach would make clear that public controversy over an activity or effect is not a factor for determining significance. CEQ proposes to add a factor to paragraph (d)(2)(vi) regarding the action’s relationship with other actions. This would reinstate a factor from the 1978 regulations and reinforce the consideration of the scope of the action that agencies should consider in a NEPA document—that an agency cannot avoid significance by terming an action temporary when it is in fact a part of a repeating or ongoing action or segmenting it into smaller parts. This longstanding NEPA principle is consistent with decades of case law prohibiting the segmentation of actions. See, e.g., Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985); Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002). CEQ proposes to add a factor to paragraph (d)(2)(vii) relating to actions that would affect historic resources listed or eligible for listing in the National Register of Historic Places. This would generally reinstate a factor from the 1978 regulations, which agencies have decades of experience considering. Consideration of this factor furthers the policies and goals of NEPA, including to ‘‘preserve important historic, cultural, and natural aspects of our national heritage . . . .’’ 42 U.S.C. 4331. CEQ proposes to add paragraph (d)(2)(viii) to include effects on an endangered or threatened species or its habitat, including critical habitat under the Endangered Species Act. 16 U.S.C. 1532(5). This would be an expansion of an intensity factor from the 1978 regulations, which only addressed critical habitat. CEQ’s proposed revision would clarify that agencies should consider effects to the habitat of endangered or threatened species even if it has not been designated as critical habitat. CEQ proposes to add paragraph (d)(2)(ix) to include consideration of the degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns. Evidence continues to accumulate that communities with environmental justice concerns often experience disproportionate environmental burdens such as pollution or urban heat stress, and often experience disproportionate health and other socio-economic burdens that make them more susceptible to adverse effects. Finally, CEQ proposes to add paragraph (d)(2)(x) to include effects E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 upon the rights of Tribal Nations reserved through treaties, statutes, or Executive Orders. This proposed addition would clarify that agencies should consider how an action may impact the reserved rights of Tribal Nations. Tribes’ ability to exercise these rights often depends on protection of the resources that support the rights, and agencies should consider impacts to such resources. CEQ specifically seeks comments from Tribes on this proposed addition. CEQ invites comments on whether there are other considerations that should be added to the regulations to guide agency evaluation of the context and intensity of an effect as part of a determination of significance. 3. Categorical Exclusions (§ 1501.4) CEQ proposes revisions to § 1501.4 to clarify this provision, which the 2020 rule added, and provide agencies new flexibility to establish CEs using additional mechanisms and flexibilities outside of their NEPA procedures to promote more efficient and transparent development of CEs that may be tailored to specific environmental contexts or project types. First, CEQ proposes to edit § 1501.4(a) for consistency with and add a cross reference to § 1507.3(c)(8), which currently requires agencies to establish CEs in their NEPA procedures. This revision would more fully and accurately reflect the purposes of and requirements for CEs. As is reflected in the regulations, CEQ views CEs to be an important mechanism to promote efficiency in the NEPA process where agencies have long exercised their expertise to identify and substantiate categories of actions that normally do not have a significant effect on the human environment. CEQ also proposes to add the clause ‘‘individually or in the aggregate’’ to § 1501.4(a)’s description of CEs. This proposal would clarify that when establishing a CE in its procedures, an agency must determine that the application of the CE to a single action and the repeated collective application to multiple actions would not have significant effects on the human environment. This clarification recognizes that agencies often use CEs multiple times over many years. This change is consistent with the definition of ‘‘categorical exclusion’’ provided by section 111(1) as a ‘‘category of actions,’’ which highlights the manner in which CEs consider an aggregation of individual actions. This change is similar to the 1978 regulations’ definition of CEs as categories of actions that do not ‘‘individually or VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 cumulatively’’ have significant effects, which the 2020 rule removed consistent with its removal of the term ‘‘cumulative impacts’’ from the regulations. The Phase 1 rulemaking reinstated cumulative effects to the definition of ‘‘effects,’’ 62 so the 2020 rule’s justification for removing the phrase no longer has a basis. However, CEQ proposes to use the phrase ‘‘in the aggregate’’ rather than ‘‘cumulatively’’ to avoid potential confusion. Cumulative effects refer to the incremental effects of an agency action added to the effects of other past, present, and reasonably foreseeable actions. In the context of establishing CEs, agencies must consider both the effects of a single action as well as the aggregation of effects from anticipated multiple actions covered by the CE such that the aggregate sum of actions covered by the CE does not normally have a significant effect on the human environment. As part of this analysis, agencies consider the effects—direct, indirect, and cumulative—of the individual and aggregated actions. Because the definition of effects includes cumulative effects, CEQ considers the phrase ‘‘in the aggregate’’ to more clearly define what agencies must consider in establishing a CE—the full scope of direct, indirect, and cumulative effects of the category of action covered by the CE. Agencies have flexibility on how to evaluate whether the ‘‘aggregate’’ of actions covered by a CE will not ordinarily have significant effects and may consider the manner in which the agency’s extraordinary circumstances may avoid multiple potential actions having reasonably foreseeable significant effects in the aggregate. As discussed further in section II.I.2 CEQ notes that agencies do not need to evaluate the environmental effects of establishing the CE itself, but rather define the category of action and demonstrate in its substantiation that the CE does not normally have significant effects in the absence of extraordinary circumstances. CEQ proposes to add a qualifying clause at the end of the sentence to reference extraordinary circumstances consistent with § 1501.4(b), and add a definition of ‘‘extraordinary circumstances’’ at § 1508.1(m). These provisions are consistent with longstanding practice and recognize that, as the definition provided by section 111(1) indicates, CEs are a mechanism to identify categories of actions that normally do not have significant environmental effects. Extraordinary circumstances serve to identify actions within a PO 00000 62 Phase 1 Final Rule, supra note 47, at 23469. Frm 00015 Fmt 4701 Sfmt 4702 49937 category of actions the effects of which exceed those normally associated with that category of action and therefore, do not fall within the bounds of the CE. Finally, CEQ also proposes to add at the end of paragraph (a) language clarifying that agencies may establish CEs individually or jointly with other agencies. In such cases, agencies may use a shared substantiation document and list the CEs in both agencies’ NEPA procedures or identify them through another joint document as provided for by proposed § 1501.4(c). CEQ proposes this addition to provide an additional mechanism for establishing CEs transparently and with appropriate public process. Agencies may find value in establishing a CE jointly for activities that they routinely work on together where having a CE would create efficiency in project implementation. Agencies also may save administrative time by establishing CEs jointly. CEQ proposes edits to § 1501.4(b)(1) to clarify the standard for applying a CE to a proposed action where extraordinary circumstances exist: an agency may apply a CE if the agency determines that a proposed action does not have the potential to result in significant effects, or the agency modifies the proposed action to address the extraordinary circumstance. This standard is consistent with agency practice and has been upheld in case law. As currently drafted, 40 CFR 1501.4(b)(1) could be construed to mean that agencies may mitigate extraordinary circumstances that would otherwise have the potential for significant effects and thereby apply a CE with no opportunity for public review or engagement on such actions. While the 2020 Response to Comments sought to distinguish ‘‘circumstances that lessen the impacts’’ from required mitigation to address significant effects,63 based on CEQ’s discussions with agency representatives and stakeholders, the potential for confusion remains. CEQ’s proposed standard makes clear that if an extraordinary circumstance exists, an agency must make an affirmative determination that there is no potential for significant effects in order to apply a CE. If it finds such potential it must either: (1) modify its proposed action in a way that will address the extraordinary circumstance, or (2) prepare an EA or EIS. CEQ also proposes to add a documentation requirement in these 63 CEQ, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act Final Rule Response to Comments 130 (June 30, 2020) (‘‘2020 Response to Comments’’), https://www.regulations.gov/ document/CEQ-2019-0003-720629. E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49938 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules instances where an agency is applying a CE notwithstanding extraordinary circumstances. CEQ also proposes to add language encouraging agencies to publish such documentation. While not required, CEQ encourages agencies to publish documentation of instances where an agency is applying a CE notwithstanding extraordinary circumstances to provide transparency to the public of an agency determination that there is no potential for significant effects. The proposed language responds to feedback from the public requesting such transparency. CEQ invites comment on whether it should require agencies to publish such documentation. In addition, CEQ proposes to add a new § 1501.4(c) to provide agencies more flexibility to establish CEs outside of their NEPA procedures. This provision would allow agencies to establish CEs through a land use plan, a decision document supported by a programmatic EIS or EA, or other equivalent planning or programmatic decisions. Once established, agencies could apply CEs to future actions addressed in the program or plan, including site-specific or project-level actions. CEQ anticipates that expanding the mechanisms through which agencies may establish CEs will encourage agencies to conduct programmatic and planning reviews, increase the speed with which agencies can establish CEs while ensuring public participation and adequate substantiation, promote the development of CEs that are tailored to specific contexts, geographies, or project-types, and allow decision makers to consider the cumulative effects of related actions on a geographic area over a longer time frame than agencies generally consider in a review of a single action. This provision would not require agencies to establish CEs through the mechanism added in § 1501.4(c) but rather would provide new options for agencies to consider. CEQ also notes that this mechanism does not preclude agencies from conducting and relying on programmatic analyses in making project-level decisions consistent with § 1501.11. Additionally, it does not require agencies to conduct a NEPA analysis to establish CEs generally, consistent with § 1507.3(c)(8). Establishing a CE through this alternative approach could be beneficial by providing agencies with more flexibility on how to identify categories of actions that normally will not have significant effects and establishing a CE for them. A programmatic EIS supporting a program decision or land use plan could, for example, provide the VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 analysis necessary to substantiate a new CE established by the associated decision document that makes sense in the context of the overall program decision or land use plan. For example, a land management agency could consider establishing a CE for zero or minimal impact resilience-related activities. Enabling an agency to establish a CE through this mechanism would reduce duplication of effort by obviating the need for the agency to revise their NEPA procedures consistent with § 1507.3 after completing the programmatic EIS. Agencies also may find it efficient to establish a CE through a land use planning process rather than undertaking a separate process to establish the CE via agency procedures after completion of the land use planning process. Paragraphs (c)(1) through (c)(6) would set forth the requirements for the establishment of CEs through mechanisms other than an agency’s NEPA procedures. Paragraphs (c)(1) and (c)(2) would require agencies to provide CEQ an opportunity to review and comment and provide opportunities for public comment. Agencies may satisfy the requirement for notification and comment under paragraph (c)(2) by incorporating the proposed CEs into any interagency and public review process that involves notice and comment opportunities applicable to the relevant programmatic or planning document. Proposed paragraphs (c)(3) and (c)(4) would include the same requirements for agencies to substantiate CEs and provide for extraordinary circumstances when they establish CEs under this section as when they establish CEs through their agency NEPA procedures pursuant to § 1507.3. Specifically, first, agencies would have to substantiate their determinations that the category of actions covered by a CE normally will not result in significant effects, individually or in the aggregate. Second, agencies would need to identify extraordinary circumstances. This could be the same list set forth in the agency’s NEPA procedures, a list specific to this set of CEs, or a combination of both. While agencies would need to satisfy these requirements in a manner consistent with the establishment of CEs under § 1507.3, agencies could document their compliance with these requirements in the relevant programmatic or planning documents. Proposed paragraph (c)(5) would direct agencies to establish a process for determining that a CE applies to a specific action in the absence of extraordinary circumstance, or determine the CE still applies notwithstanding the presence of PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 extraordinary circumstances. Finally, paragraph (c)(6) would direct agencies to maintain a list of all such CEs on their websites, similar to the requirement for agencies to publish CEs established in their agency NEPA procedures consistent with §§ 1507.3(b)(2) and 1507.4(a). Agency websites should clearly link the CEs to their underlying programmatic or planning documents. Additionally, agencies may want to incorporate CEs established through these mechanisms into their agency NEPA procedures during a subsequent revision. CEQ encourages agencies to list all agency CEs in one location, regardless of how the agency established the CE, so that the public can easily access the full list of an agency’s CEs. Proposed § 1501.4(d) would identify a list of examples of features agencies may want to consider including when establishing CEs, regardless of what mechanism they use to do so. Paragraph (d)(1) would note that CEs may cover specific geographic areas or areas that share common characteristics, such as a specific habitat type for a given species. To promote experimentation and evaluation, paragraph (d)(2) would indicate that agencies may establish CEs for a limited duration. Doing so would enable agencies to narrow the scope of analysis necessary to substantiate that a class of activities normally will not have a significant environmental effect where uncertainty exists about changes to the environment that may occur later in time that could affect the analysis. As with all CEs, agencies should review their continued validity periodically, consistent with CEQ’s proposed review timeframe in § 1507.3(c)(9). Once the limited duration threshold is met, agencies could either consider the CE expired, conduct additional analysis to create a permanent CE, or reissue the CE for a new period. Paragraph (d)(3) provides that a CE may include mitigation measures to address potential significant effects. A CE that includes mitigation is different than an agency modifying an action to avoid an extraordinary circumstance that would otherwise require preparation of an EA or EIS. Paragraph (d)(3) makes clear that an agency may establish a CE for a class of activities that include mitigation requirements as part of the CE application. Agencies would implement the activities covered by the CE as well as the mitigation incorporated into those activities as part of the CE. As an illustrative example, an agency could conclude that, as a category, a type of activity that degrades five acres of habitat will not ordinarily have significant effects where five acres E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules of equivalent habitat are effectively restored or conserved elsewhere. As another example, a CE could allow for vegetation management activities but require specific mitigation if a certain habitat type is disturbed, such as implementing vegetation activities on 10 acres of sage grouse habitat and requiring restoration or compensatory mitigation for an equivalent 10 acres of sage grouse habitat. Where an agency establishes a CE with a mitigation requirement, the agency would need to include such mitigation in their proposed actions in order for the CE to apply. Paragraph (d)(4) would provide that agencies can include criteria for when a CE might expire, such that, if such criteria were present, the agency could no longer apply that CE. For example, an agency could establish a CE for certain activities up to a threshold, such as a specified number of acres or occurrences. Once the agency applied that CE up to the threshold number of proposed actions, the agency could no longer use the CE. An agency might set an expiration date or threshold where their record indicates a potential for significant effects after a certain number of applications of the CE to proposed actions; where there is uncertainty beyond that threshold; or where it is unclear how widely the agency would apply the CE. In other situations, an agency may want to make a CE time limited because its authority over the actions is likewise time limited. Finally, CEQ proposes to strike the provision that would allow an agency to establish a process in its agency NEPA procedures to apply a CE listed in another agency’s NEPA procedures in 40 CFR 1507.3(f)(5) and replace it with a provision in § 1501.4(e) that is consistent with the process for adoption established by section 109 of NEPA. While section 109 uses the term ‘‘adopt’’ CEQ is proposing to use ‘‘apply’’ to distinguish this provision from the longstanding use of ‘‘adoption’’ in the CEQ regulations to refer to an agency’s reliance on another agency’s previously completed analysis, including the determination that a CE applies to a proposed action. First, paragraph (e)(1) would require the borrowing agency to identify the proposed action or category of proposed actions that falls within the CE. In instances where an agency would like to use the CE on a long-term basis, CEQ encourages agencies to establish the CE either in their own procedures or through the process set forth in § 1501.4(c). However, this provision would serve as an important bridge when agencies are implementing new VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 programs where they have not yet established relevant CEs or when existing programs begin to undertake new categories of actions but where other agencies have experience with similar actions and have established a CE for those actions. In these circumstances, the agency could immediately begin to implement the new programs and new activities based on another agencies CE for similar actions without the need to first develop a CE to cover them. CEQ also notes that, consistent with the requirement of section 109(2) that an agency consult with ‘‘the agency that established the categorical exclusion,’’ this provision would only apply to CEs established administratively by the agency, including those that Congress directs agencies to establish administratively, but not those CEs created by statute. While CEQ encourages agencies to include legislative CEs established by statute in their NEPA procedures to provide transparency, they are not ‘‘established’’ by the agency, but rather by Congress. CEQ invites comment on this approach. Second, under paragraph (e)(2), the borrowing agency would consult with the agency that has the listed CE to ensure application of the CE is appropriate. Third, under paragraph (e)(3), the borrowing agency would evaluate for extraordinary circumstances, consistent with § 1501.3(b) to incorporate the process for documenting use of the CE when extraordinary circumstances are present, but application of the CE is still appropriate. Finally, under paragraphs (e)(4) and (e)(5), the borrowing agency would document application of the CE, provide public notice of the CE that the agency plans to use, and publish the documentation of the application of the CE. Neither the statute or the proposed regulation requires the agency to accept comment on the public notice of the CE that the agency plans to use. In cases where an agency is applying CEs to a category of actions, the agency could conduct a single consultation and publish a consolidated notice, for example. CEQ invites comment on its proposed process. CEQ invites comment on whether the regulations implementing section 109 should include additional provisions to facilitate the use of CEs while ensuring CEs are not used improperly to authorize actions that have reasonably foreseeable significant effect. CEQ notes that there has been some confusion regarding the difference between the use or borrowing of another agency’s CE proposed in § 1501.4(e), which section 109 of NEPA refers to as PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 49939 adoption and is currently provided by 40 CFR 1507.3(f)(5) and adoption of a CE determination under § 1506.3(d). In the latter case of adoption of a CE determination, an agency with a CE has applied the CE to its own proposed action. A second agency then adopts that determination for the second agency’s action that is substantially the same. Under § 1501.4(e), an agency may use a CE from another agency that has not itself determined that the CE applies to an action. In such circumstances, an agency would be borrowing the CE of another agency and applying it to a new, separate action, rather than adopting a CE determination for an action that is substantially the same. 4. Environmental Assessments (§ 1501.5) CEQ proposes to revise § 1501.5 for consistency with sections 106(b)(2) and 107(e)(2) of NEPA, and to provide greater clarity to agencies on the requirements that apply to the preparation of EAs and to codify agency practice. CEQ proposes edits to address what agencies must discuss in an EA, how agencies should consider public comments they receive on draft EAs, what page limits apply to EAs, and what other requirements in the CEQ regulations agencies should apply to EAs. Regarding the contents of an EA, CEQ proposes to split 40 CFR 1501.5(c)(2), which requires an EA to briefly discuss the purpose and need for the proposed action, alternatives, and effects, into paragraphs (c)(2)(i) through (iii) to improve readability and provide a clearly defined list of requirements. This formatting change would make it easier for the public and the agencies to ascertain whether an EA includes the necessary contents. For example, when an agency develops an EA for a proposal involving unresolved conflicts concerning alternative uses of available resources, section 102(2)(H) requires an analysis of alternatives, which will generally require analysis of one or more reasonable alternatives, in addition to a proposed action and no action alternative. 42 U.S.C. 4332(2)(H). CEQ proposes to move from 40 CFR 1501.5(c)(2) into its own paragraph at § 1501.5(c)(3) the requirement for EAs to list the agencies and persons consulted in the development of the EA. CEQ also proposes to clarify in this paragraph that agencies include Federal agencies as well as State, Tribal, and local governments and agencies. CEQ also proposes to add in paragraph (c)(4) a requirement that the EA include a unique identification number that can be used for tracking purposes that E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49940 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules would then be carried forward to all other documents related to the environmental review of the action, including the FONSI. Identification numbers can help the public and agencies track the progress of an EA for a specific action as it moves through the NEPA process and may allow for more efficient and effective use of technology such as databases. CEQ also is proposing a similar requirement for EISs in § 1502.4(e)(9). To reflect current agency practice and provide the public with a clearer understanding about potential public participation opportunities with respect to EAs, CEQ proposes to add a new paragraph (e) that provides that if an agency chooses to publish a draft EA, it must invite public comment on the draft and consider those comments when preparing a final EA. This provision reflects the fact that one of the primary purposes for which agencies choose to prepare draft EAs is to enable public participation. Codifying this practice will enhance the public’s understanding of the NEPA process and meaningful public engagement and does not restrict agency discretion over whether to choose to prepare a draft EA for public comment. CEQ would redesignate the current 40 CFR 1501.5(e) and (f) to § 1501.5(f) and (g) respectively. CEQ also proposes to revise § 1501.5(g) to dispense with the requirement for senior agency official approval to exceed 75 pages, not including any citations or appendices, for consistency with section 107(e)(2) of NEPA. CEQ proposes to add paragraph (h) to clarify that agencies may reevaluate or supplement an EA if a major Federal action remains to occur and the agency considers it appropriate to do so. Paragraph (h) also would provide that agencies may reevaluate an environmental assessment or otherwise document a finding that changes to the proposed action or new circumstances or information relevant to environmental concerns are not substantial, or the underlying assumptions of the analysis remain valid. CEQ adds this to clarify that an agency may apply the provisions at § 1502.9 regarding supplemental EISs to a supplemental EA to improve efficiency and effectiveness. Finally, CEQ proposes to clarify the provisions that agencies should or may apply to EAs. In a new paragraph (i), CEQ proposes to clarify that agencies generally should apply the provisions of § 1502.21 regarding incomplete or unavailable information and § 1502.23 regarding scientific accuracy. The 2020 regulations added these as provisions VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 agencies ‘‘may apply;’’ however, on reflection, CEQ considers it important to disclose where information is incomplete or unavailable, and ensure scientific accuracy for all levels of NEPA review, not just EISs. Then, CEQ proposes to provide in paragraph (j) that agencies may apply the other provisions of parts 1502 and 1503 where they consider it appropriate to improve efficiency and effectiveness of EAs. This provision includes a list of example provisions where this might be the case—scoping (§ 1502.4), cost-benefit analysis (§ 1502.22), environmental review and consultation requirements (§ 1502.24), and response to comments (§ 1503.4). 5. Findings of No Significant Impact (§ 1501.6) CEQ proposes two revisions to § 1501.6 on findings of no significant impact (FONSIs) to clarify the 2020 rule’s codification of the longstanding agency practice of relying on mitigated FONSIs in circumstances where the agency incorporates mitigation into the proposed action to reduce its effects below significance. This is an important efficiency tool for NEPA compliance because it expands the circumstances in which an agency may prepare an EA and reach a FONSI, rather than preparing an EIS, consistent with the requirements of NEPA. Paragraph (a) currently describes that an agency prepares a FONSI when it determines, as a result of an EA, not to prepare an EIS because the proposed action will not have significant effects. At the end of paragraph (a), CEQ proposes to clarify that agencies can prepare a mitigated FONSI if the action will include mitigation to avoid the significant effects that would otherwise occur or minimize or compensate for them to the point that the effects are not significant. So long as the agency can conclude that effects will be insignificant in light of mitigation, the agency can issue a mitigated FONSI. CEQ considers this an important clarification for consistency with the language in § 1501.6(c). Codification of these best practices also aligns with guidance CEQ has issued on appropriate use of mitigation, monitoring, and mitigated FONSIs.64 Paragraph (c) currently addresses what an agency must include in a FONSI regarding mitigation. The text provides that when an agency relies on 64 CEQ, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (Jan. 14, 2011), https://ceq.doe.gov/docs/ceq-regulationsand-guidance/Mitigation_and_Monitoring_ Guidance_14Jan2011.pdf. PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 mitigation to reach a FONSI, the mitigated FONSI must state the enforceable mitigation requirements or commitments that avoid the potentially significant effects. CEQ proposes to clarify in the second sentence that the FONSI must state the enforceable mitigation requirements or commitments, as well as the authorities for them, since they must be enforceable for agencies to reach a mitigated FONSI. CEQ proposes this change because, where a proposed action evaluated in an EA may have significant effects, and an agency is not preparing an EIS, the FONSI must include mitigation of the significant effects. At the end of paragraph (c), CEQ proposes additional language to provide additional details on what is needed to demonstrate that mitigation requirements or commitments are enforceable. Specifically, the proposed language would direct agencies to identify the authority that is being exercised to make the mitigation enforceable. Finally, as discussed in section II.G.2, CEQ proposes to add a new sentence at the end of paragraph (c) to require a monitoring and compliance plan when the EA relies on mitigation as a component of the proposed action and incorporates the mitigation into the FONSI, consistent with proposed § 1505.3(c). These changes will help effectuate NEPA’s purpose as articulated in section 101, including to ‘‘attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences’’ and to ‘‘preserve important historic, cultural, and natural aspects of our national heritage . . . .’’ 42 U.S.C. 4331(b). 6. Lead Agency; Cooperating Agencies (§§ 1501.7 and 1501.8) CEQ proposes to eliminate the reference to ‘‘complex’’ environmental assessments. The 2020 rule added this term without definition. CEQ invites comment on whether it should retain a complex EA in the regulations, and if so, how CEQ should define a complex EA. CEQ proposes to retitle § 1501.7 ‘‘Lead Agency’’ to align with section 107(a) of NEPA. CEQ proposes to revise paragraph (b) regarding joint lead agencies for consistency with section 107(a)(1)(B) of NEPA to clarify that the participating Federal agencies may designate a Federal, State, Tribal, or local agency as a joint lead agency upon invitation to and acceptance by such agency. CEQ includes Federal agencies in the list of potential joint lead agencies because there are circumstances in which having another E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules agency serving as a joint lead agency will enhance efficiency. CEQ does not read the text in section 107(a)(1)(B) of NEPA as precluding this approach, but rather Congress specified that State, Tribal, and local agencies may serve as joint lead agencies because they are ineligible to serve as the lead agency. CEQ invites comment on whether it should make additional changes to this paragraph. CEQ proposes to revise paragraph (c) for consistency with section 107(a)(1) of NEPA to clarify that the participating Federal agencies determine the agency that will be lead and any joint lead agencies, and that the lead agency determines any cooperating agencies. This change also would make this paragraph consistent with the text in § 1506.2(c) on joint EISs. In § 1501.7(d), CEQ proposes to revise the text for consistency with section 107(a)(5)(B) of NEPA and make a non-substantive change to replace the phrase ‘‘private person’’ with the word ‘‘individual’’ for consistency with this term’s use in other sections of the regulations. In paragraph (e), CEQ proposes to revise the text for consistency with section 107(a)(4) of NEPA, clarify that the 45 days is calculated from the date of the written request to the senior agency officials as set forth in § 1501.7(d), and replace ‘‘persons’’ with ‘‘individuals’’ for consistency with the rest of regulations. In paragraph (f), CEQ proposes to revise the text for consistency with section 107(a)(5)(D) of NEPA, to change ‘‘within 20 days’’ to ‘‘no later than 20 days’’ in the first sentence, and ‘‘20 days’’ to ‘‘40 days’’ and ‘‘determine’’ to ‘‘designate’’ in the second sentence. Currently, 40 CFR 1501.7(g), addressing combined documents, is consistent with the text of section 107(b) of NEPA with respect to EISs, EAs, and FONSIs. The statute does not address joint RODs. CEQ proposes to revise § 1501.7 to add a caveat that agencies must issue joint RODs except where it is inappropriate or inefficient to do so, such as when an agency has a separate statutory directive, or it would take significantly longer to issue a joint ROD than separate ones. CEQ recognizes that, in some cases, requiring a joint ROD could inadvertently slow the NEPA process down because, for example, agencies may have different procedures for issuing authorizations under their applicable legal authorities or may need to consider different factors. But in other cases, it could improve efficiency by avoiding duplication of effort or analysis. Additionally, for consistency with § 1501.5, CEQ proposes to add that agencies can jointly determine to VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 prepare an EIS if a FONSI is inappropriate. In § 1501.7(h)(2), CEQ proposes to add a clause consistent with section 107(a)(2)(C) of NEPA requiring the lead agency to give consideration to a cooperating agency’s analyses and proposals. In the existing clause, CEQ proposes to move the qualifier, ‘‘to the extent practicable’’ to clarify that it only modifies the second clause, and change ‘‘proposals’’ to ‘‘information’’ to make the text consistent with § 1501.8(b)(3). Further, the use of ‘‘proposal’’ here is inconsistent with the definition of ‘‘proposal’’ provided in § 1508.1(cc). CEQ also proposes to remove the reference to jurisdiction by law or special expertise as unnecessarily redundant given that the definition of ‘‘cooperating agencies’’ in § 1508.1(e) incorporates those phrases. As discussed further in section II.C.8, CEQ proposes to move the requirements for schedules and milestones currently in 40 CFR 1501.7(i) and (j) to proposed § 1501.10(c) in order to consolidate provisions related to deadlines, schedules, and milestones in one section. CEQ proposes an addition to § 1501.8 to clarify the meaning of the phrase ‘‘special expertise.’’ Paragraph (a) provides that a lead agency may request an agency with special expertise to serve as a cooperating agency. CEQ proposes to clarify in paragraph (a) that special expertise can include Indigenous Knowledge. This proposed change helps ensure that Federal agencies respect and benefit from unique knowledge that Tribal governments may bring to the environmental review process. CEQ notes that the Office of Science and Technology Policy and CEQ have issued a Guidance Memorandum for Federal Departments and Agencies on Indigenous Knowledge,65 but does not define Indigenous Knowledge. CEQ invites comment on whether it should include such a definition in the regulations. Finally, CEQ notes that even where a federally recognized Tribe participates as a cooperating agency, the agency also may have an obligation to engage in government-to-government consultation on the proposed action consistent with the agency’s obligations under E.O. 13175, Consultation and Coordination with Indian Tribal Governments.66 65 Office of Science and Technology Policy and CEQ, Guidance for Federal Departments and Agencies on Indigenous Knowledge (Nov. 30, 2022), https://www.whitehouse.gov/wp-content/uploads/ 2022/12/OSTP-CEQ-IK-Guidance.pdf. 66 E.O. 13175, supra note 53. PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 49941 In paragraph (b)(7), CEQ proposes to strike the second clause requiring cooperating agencies to limit their comments to align this paragraph with section 107(a)(3) of NEPA. Finally, CEQ invites comment on whether it should make any additional changes to these sections to promote or improve lead and cooperating agency engagement on the preparation of NEPA documents or increase the efficiency of the preparation process. 7. Public and Governmental Engagement (§ 1501.9) CEQ proposes to address public and governmental engagement in a revised § 1501.9 by moving and updating 40 CFR 1506.6, ‘‘Public involvement,’’ to § 1501.9, and moving provisions specific to the EIS scoping process to § 1502.4. CEQ proposes these updates to continue to provide agencies with flexibility to tailor their engagement specific to their programs and actions while also maintaining the requirements to engage the public and affected parties in the NEPA process. CEQ proposes revisions to § 1501.9 to emphasize the importance of creating an accessible and transparent NEPA process. CEQ also proposes many of these changes in response to feedback on the Phase 1 proposed rule, the 2020 proposed rule, and input received from stakeholders and agencies during development of this proposed rule. Much of that feedback requested increased opportunities for public engagement and increased transparency about agency decision making, along with general requests that CEQ elevate the importance of public engagement in the NEPA process. Finally, CEQ proposes to move the requirements related to public engagement to part 1501 to emphasize that it is a core component of the NEPA process and agency planning, regardless of the level of NEPA analysis being undertaken. To accomplish this goal, CEQ is proposing changes to multiple sections of the regulations. First, CEQ is proposing to move the existing provisions of 40 CFR 1501.9 on scoping, specifically paragraphs (a), (b), (c), (d), (d)(1) through (8), (f), and (f)(1) through (5) to proposed § 1502.4, ‘‘Scoping.’’ As discussed in sections II.C.2 and II.C.9, CEQ proposes to move the existing provisions in 40 CFR 1502.4 on ‘‘Major Federal actions requiring the preparation of environmental impact statements’’ to §§ 1501.3 and 1501.11. Also, as discussed in section II.C.2, CEQ proposes to move the remaining text of existing 40 CFR 1501.9(e) and (e)(1) through (3) on the determination of scope to proposed § 1501.3 because E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49942 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules determining the scope of actions applies to all levels of NEPA review. CEQ proposes to retitle § 1501.9 to ‘‘Public and governmental engagement’’ and accordingly update references to ‘‘public involvement’’ within this section and throughout the CEQ regulations to ‘‘public engagement.’’ CEQ is proposing this change because the word ‘‘engagement’’ better reflects how Federal agencies should be interacting with the public. The word ‘‘engagement’’ reflects a process that is more interactive and collaborative compared to simply including or notifying the public of an action. Engagement is also a common term for Federal agencies with experience developing public engagement strategies or that work with public engagement specialists. CEQ proposes to add ‘‘governmental’’ to the title to better reflect the description of the provisions proposed to be included in the section, which relate to both public and governmental entities. Next, CEQ proposes to add paragraphs (a) and (b) to articulate the purposes of public and governmental engagement and to identify the responsibility of agencies to determine the appropriate methods of public and governmental engagement and conduct scoping consistent with § 1502.4 for EISs. CEQ proposes to use the phrase ‘‘meaningful’’ engagement to better describe the purpose of this process because public and governmental engagement should not be a mere checkthe-box exercise, and agencies should conduct engagement with appropriate planning and active dialogue or other interaction with stakeholders in which all parties can contribute. For example, such engagement can inform the potential for significant effects or identify alternatives that avoid or reduce effects. Agencies should determine the appropriate level of outreach needed to engage meaningfully and effectively with affected communities. Paragraph (c) would list what actions the lead agency should take when conducting outreach for public and governmental engagement. Proposed paragraph (c)(1) would recommend agencies invite likely affected agencies and governments, and paragraph (c)(2) would recommend agencies conduct early engagement with likely affected or interested members of the public. CEQ modeled these provisions on the existing approaches in 40 CFR 1501.7(a)(1) (2019) and 40 CFR 1501.9(b) (2020) to invite early participation of likely affected parties. Paragraph (c)(3) would provide flexibility to agencies to tailor VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 engagement strategies, considering the scope, scale, and complexity of the proposed action and alternatives, the degree of public interest, and other relevant factors. CEQ proposes to move from 40 CFR 1506.6(c) to § 1501.9(c)(3) the requirement that agencies consider the ability of affected parties to access electronic media when selecting the appropriate methods of notification. CEQ also proposes to add a clause to the end of paragraph (c)(3) to require agencies to consider the primary language of affected persons when determining the appropriate notification methods to use. CEQ then proposes to move and modify the rest of 40 CFR 1506.6 to proposed §§ 1501.9(d), (e), and (f). Specifically, CEQ proposes to move the introductory clause of 40 CFR 1506.6 and 40 CFR 1506.6(b), including its paragraphs, to § 1501.9(d) and (d)(2), respectively, and make minor revisions to improve readability and consistency with the rest of § 1501.9, including adding the paragraph heading ‘‘notification.’’ CEQ also proposes in (d)(2) to clarify that agencies should make environmental documents available, as appropriate, to help inform the public engagement process. CEQ proposes here and throughout the CEQ regulations to replace the word ‘‘notice’’ with ‘‘Notification,’’ except where ‘‘notice’’ is used in reference to a Federal Register notice. This proposed change is intended to clearly differentiate between those requirements to publish a notice in the Federal Register and other requirements to provide notification of an activity, which may include a notice in the Federal Register or use of other mechanisms. CEQ proposes a new paragraph (d)(1) to require agencies to publish notification of proposed actions they are analyzing through an EIS. CEQ proposes this requirement in response to feedback from multiple stakeholders and members of the public requesting more transparency about agency proposed actions. Agencies may publish notification through websites, email notifications, or other mechanisms such as the Permitting Dashboard,67 so long as the notification method or methods are designed to adequately inform the persons and agencies who may be interested or affected, consistent with the definition of ‘‘publish’’ in § 1508.1(ee). A notice of intent in the Federal Register, consistent with 67 See Fed. Permitting Improvement Steering Council, Permitting Dashboard for Federal Infrastructure Projects, https:// www.permits.performance.gov/. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 § 1502.4(e), can fulfill the notification requirement, but agencies also may elect to use additional notification methods. CEQ proposes to combine the provisions from 40 CFR 1506.6(b)(3)(i) and (ii) on notice to State, Tribal, and local governments and agencies in proposed § 1501.9(d)(2)(iii)(A) to consolidate similar provisions. CEQ also proposes to recommend in paragraph (d)(2)(iii)(I) that agencies establish email notification lists or similar methods for the public to easily request electronic notifications for proposed actions. As discussed in section II.I.3, CEQ proposes to move the requirement for agencies to explain in their NEPA procedures where interested persons can get information on EISs and the NEPA process from 40 CFR 1506.6(e) to § 1507.3(c)(11) since this is a requirement for NEPA procedures, not public engagement. CEQ proposes to move the requirements to make EISs available under FOIA from 40 CFR 1506.6(f) to § 1501.9(d)(3). CEQ proposes to delete 40 CFR 1506.6(d) on soliciting information from the public because CEQ proposes to include that concept in the purpose and language of § 1501.9. CEQ proposes to move 40 CFR 1506.6(c) on public meetings and hearings to § 1501.9(e), with modification, including adding the heading ‘‘Public meetings and hearings’’ to the paragraph, making minor revisions for clarity, consistency, and readability, and adding a phrase to clarify that when an agency accepts comments for electronic or virtual meetings, agencies must allow the public to submit them electronically or via regular mail. CEQ also proposes to add in paragraph (e) a sentence encouraging agencies to consider the needs of affected communities when determining what format to use for a public hearing or public meeting because the best option for the communities involved may vary. Finally, CEQ proposes to move 40 CFR 1506.6(a) on public involvement for NEPA procedures to new paragraph § 1501.9(f), adding a paragraph heading ‘‘Agency procedures’’ and changing the word ‘‘involve’’ to ‘‘engage.’’ CEQ is proposing to move this provision to its own paragraph because engagement in the development of agency NEPA procedures does not align with the new title added for paragraph (d) and its paragraphs on notification requirements. CEQ invites comment on whether and how it can make any additional changes to this or other provisions in the regulations to enhance community engagement. This could include adding provisions to the NEPA regulations to E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 further address the responsibilities of the Chief Public Engagement Officers proposed in § 1507.2(a) to facilitate community engagement across the agency and technical assistance to communities. CEQ welcomes other ideas. 8. Deadlines and Schedule for the NEPA Process (§ 1501.10) CEQ proposes to retitle § 1501.10 to ‘‘Deadlines and schedule for the NEPA process’’ and revise the section to direct agencies to set deadlines and schedules for NEPA reviews to achieve efficient and informed NEPA analyses consistent with section 107 of NEPA. The proposed changes in this section would improve transparency and predictability for stakeholders and the public regarding NEPA reviews. In paragraph (a), CEQ proposes edits to emphasize that while NEPA reviews should be efficient and expeditious, they also must include sound analysis. The proposal would direct agencies to set deadlines and schedules tailored to individual or types of proposed actions to facilitate meeting the deadlines proposed in § 1501.10(b). Consistent with section 107(a)(2)(D) of NEPA, CEQ also proposes in this paragraph to require, where applicable, the lead agency to consult with and seek concurrence of joint lead, cooperating, and participating agencies and consult with project sponsors and applicants when establishing and updating schedules. CEQ proposes to update paragraph (b) for consistency with section 107(h) of NEPA. Paragraph (b)(1) would require agencies to complete an EA within one year and paragraph (b)(2) would require EIS completion in two years unless the lead agency extends the deadline in consultation with any applicant or project sponsor and sets a new deadline. In circumstances where there is no applicant or project sponsor, the consultation requirement is inapplicable to extension of deadlines. Paragraph (b)(3) would identify the starting points from which the deadline is measured and require agencies to measure from the soonest of the three dates identified in section 107(g) of NEPA, as applicable. CEQ notes that section 107(g)(3) of NEPA provides a mechanism for project sponsors to petition the courts for relief if an agency fails to meet the deadlines. Finally, paragraph (b)(4) would require agencies to submit the report to Congress on any missed deadlines required by section 107(h) of NEPA. To enhance predictability, CEQ proposes to add a new paragraph (c), which would contain text moved from 40 CFR 1501.7(i) and modified for VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 consistency with section 107(a)(2)(D) and (E) of NEPA requiring the lead agency to develop schedules for EISs and EAs. The schedule would include key milestones for the environmental review process, including reviews, permits, and authorizations, and the lead agency would develop it in consultation with the applicant or project sponsor and in consultation with and seek the concurrence of any joint lead, cooperating, and participating agencies. CEQ proposes to allow schedules to be tailored to proposed actions and to highlight factors that may help agencies set specific schedules to meet the deadlines. Finally, CEQ proposes to move to the end of this paragraph text from 40 CFR 1501.7(j) with modifications, including for consistency with section 107(a)(2)(E) of NEPA, and provide clarification to enhance interagency communication and issue resolution. The proposed changes would require that, when the lead agency or any participating agency anticipates a missed milestone, that agency notifies the responsible agency (and the lead agency if identified by another agency) and request that they take action to comply with the schedule. To emphasize the importance of informed and efficient decision making, CEQ proposes to require agencies to elevate any unresolved disputes contributing to the missed milestone to the appropriate officials for resolution within the deadlines for the individual action. CEQ proposes to redesignate 40 CFR 1501.10(c) as paragraph (d), which addresses factors in setting deadlines, and make changes to the text for consistency with the proposed changes to paragraph (b). Specifically, CEQ proposes to change the reference to ‘‘deadlines’’ to add a reference to ‘‘the schedule’’ and add a reference to the ‘‘lead agency,’’ to consider the listed factors in setting schedules. CEQ proposes to add an additional factor to (d)(7), redesignating 40 CFR 1501.10(c)(7) to be paragraph (d)(8), to add the degree to which a substantial dispute exists on the proposed action and its effects. This would restore and clarify a factor included in the 1978 regulations at 40 CFR 1501.8(a)(vii) (2019) regarding the degree to which the action is controversial. While the 2020 regulations removed this factor because it overlapped with other factors, CEQ is proposing to restore and clarify it in the list of factors, focusing on substantial disputes over the size, location, nature, or consequences of the proposed action and its effects. CEQ considers this an important factor that could have PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 49943 implications for establishing schedules and milestones. In such instances, agencies should seek ways to resolve disputes early in the process, including using conflict resolution and other tools, to achieve efficient outcomes and avoid costly and time-consuming litigation later in the process. CEQ proposes to redesignate 40 CFR 1501.10(d) as paragraph (e) and require a schedule to include a list of specific milestones. Proposed paragraphs (e)(1) through (e)(5) would require EIS schedules to include proposed dates for publication of the NOI, issuance of the draft EIS, the public comment period, issuance of the final EIS, and issuance of the ROD. CEQ proposes to remove paragraphs 40 CFR 1501.10(d)(2), (d)(6), and (d)(7) because they are either covered by proposed (e)(1) through (e)(3) or unnecessary. CEQ proposes in paragraph (f) and (f)(1) through (f)(4) to identify the milestones that agencies must include in schedules for EAs. CEQ proposes to redesignate 40 CFR 1501.10(e) as paragraph (g). Finally, to increase predictability and enhance agency accountability, CEQ proposes to strike 40 CFR 1501.10(f) and add a new paragraph (h) to require agencies to make schedules for EISs publicly available and to publish revisions to the schedule. It also would require agencies to publish revisions to the schedule and include an explanation for substantial revisions to increase transparency and public understanding of decision making and to encourage agencies to avoid unnecessary delays. 9. Programmatic Environmental Document and Tiering (§ 1501.11) CEQ proposes to revise and retitle § 1501.11, ‘‘Programmatic environmental document and tiering,’’ for consistency with section 108 of NEPA, to consolidate relevant provisions, and to add new language to codify best practices for developing programmatic NEPA reviews and tiering, which are important tools to facilitate more efficient environmental reviews and project approvals. The revisions to this section propose to move portions of 40 CFR 1502.4 on EISs for broad Federal actions to proposed § 1501.11 because agencies can review actions at a programmatic level in both EAs and EISs. CEQ has encouraged agencies to engage in environmental reviews for broad Federal actions through the NEPA process since CEQ’s initial guidelines. This continues to be a best practice for addressing broad actions, such as programs, policies, rulemakings, series of projects, and larger or multi-phase projects. CEQ developed guidance in 2014 on Effective E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49944 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules Use of Programmatic NEPA Reviews,68 compiling best practices across the Federal Government on the development of programmatic environmental reviews. In this proposed rule, CEQ would codify some of these principles. CEQ proposes to first address programmatic environmental documents and then tiering in § 1501.11. Accordingly, CEQ proposes to redesignate existing 40 CFR 1501.11(a), (b), and (c), which address tiering, to be proposed paragraphs (b), (b)(1), and (b)(2), respectively, with some modifications. CEQ proposes to add a new paragraph (a) to address programmatic environmental documents. Proposed paragraph (a) would encourage the use of programmatic environmental documents through an EIS or EA that evaluates the environmental effects of policies, programs, plans, or groups of related activities. CEQ proposes to move text from 40 CFR 1502.4(b) to § 1501.11(a) and revise it to include EAs, providing that programmatic environmental documents should be relevant to the agency decisions and timed to coincide with meaningful points in agency planning and decision making. Finally, paragraph (a) would clarify that agencies can use programmatic environmental documents in a variety of ways, highlighting some examples for agencies to consider to facilitate better and more efficient environmental reviews. CEQ proposes to move the list of ways agencies may find it useful to evaluate a proposal when preparing programmatic documents from 40 CFR 1502.4(b)(1) and (b)(1)(i) through (b)(1)(iii) to § 1501.11(a)(1) and (a)(1)(i) through (a)(1)(iii), respectively, and expand the list to apply to environmental documents rather than just EISs to encompass EAs. CEQ proposes to modify paragraph (a)(1)(ii) to clarify ‘‘[g]enerically’’ to mean ‘‘[t]hematically or by sector,’’ and add technology as an example action type. CEQ proposes to add paragraph (a)(2) to provide examples of the types of agency actions that may be appropriate for programmatic environmental documents, including programs, policies, or plans; regulations; national or regional actions; or actions with multiple stages and are part of an overall plan or program. CEQ proposes to move 40 CFR 1502.4(b)(2) to § 1501.11(a)(3) and recommend that agencies employ scoping and other tools to describe the relationship between programmatic environmental document 68 Programmatic VerDate Sep<11>2014 Guidance, supra note 11. 19:24 Jul 28, 2023 Jkt 259001 and related actions to reduce duplication. CEQ proposes to strike the last sentence of 40 CFR 1502.4(b)(2) stating that agencies may tier their analyses because tiering and programmatic environmental documents would now be addressed together in this section rendering the language unnecessary. As referenced earlier in this section, CEQ proposes to redesignate the existing paragraphs on tiering to paragraphs (b), (b)(1) and (b)(2). CEQ proposes to title paragraph (b) ‘‘Tiering’’ and add new language to describe when agencies may employ tiering. CEQ proposes to strike as redundant the reference to issues not yet ripe for decision as well as the last sentence on applying tiering to different stages of actions. In § 1501.11(b)(1) CEQ proposes to add programmatic environmental document to the list of documents from which agencies may tier. This paragraph also would clarify that agencies need to discuss the relationship between the tiered analysis and the previous review; evaluate site-, phase-, or stage-specific conditions and effects; and allow for public engagement opportunities that are appropriate for the location, phase, or stage. Programmatic documents can most effectively address later activities when they provide a description of planned activities that would implement the program and consider the effects of the program as specifically and comprehensively as possible. A sufficiently detailed programmatic analysis with such project descriptions can allow agencies to rely upon programmatic environmental documents for further actions with no or little additional environmental review necessary. When conducting programmatic analyses, agencies should engage the public throughout the NEPA process and consider when it is appropriate to re-engage the public prior to implementation of the action. In paragraph (c), CEQ proposes to include the provisions in section 108 of NEPA, which address when an agency may rely on a programmatic document in subsequent environmental documents. CEQ notes that it interprets the reference to ‘‘judicial review’’ in paragraph (c)(1) to mean an opportunity for a party to challenge the programmatic document, including an administrative proceeding or challenge under the Administrative Procedure Act. CEQ invites comment on whether to provide additional information in the regulations to clarify this provision. CEQ proposes in paragraph (c)(2) to require agencies to briefly document PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 their reevaluations when relying on programmatic environmental documents older than 5 years. CEQ invites comment on whether and how to more closely align this provision with the reevaluation and supplementation provisions in §§ 1501.5(h) and 1502.9(d). CEQ invites comment on any additional changes that would promote effective use of programmatic environmental reviews to facilitate efficient and non-duplicative subsequent review of project-specific actions, including through tiering. 10. Incorporation by Reference Into Environmental Documents (§ 1501.12) CEQ proposes minor modifications to § 1501.12 to emphasize the importance of transparency and accessibility of material that agencies incorporate by reference. CEQ proposes to add a specific requirement for agencies to briefly explain the relevance of any material incorporated into the environmental document to clarify that agencies must do this. CEQ proposes this addition because explaining the relevance of incorporated material in addition to summarizing it will better inform the decision maker and the public. CEQ encourages agencies to integrate the description of relevance into the summary of the material. CEQ also proposes to change ‘‘may not’’ to ‘‘shall not’’ to eliminate a potential ambiguity over whether agencies must make material they incorporate by reference reasonably available for public inspection. CEQ also proposes to add a reference to ‘‘publicly accessible website’’ as an example of a mechanism for making material incorporated by reference available to the public, and clarify that an agency may meet this obligation by posting documents on a website. Finally, CEQ proposes to add language encouraging agencies to provide digital references, such as hyperlinks, to incorporated material or otherwise indicate how the public can access the material for inspection. D. Proposed Revisions To Update Part 1502, Environmental Impact Statements CEQ is proposing revisions to many sections of part 1502. CEQ is not proposing any substantive changes to § 1502.3, but is revising the section title to read ‘‘Statutory requirements for environmental impact statements.’’ CEQ is not proposing substantive changes to § 1502.6, Interdisciplinary preparation; § 1502.13, Purpose and need; § 1502.18, List of preparers; § 1502.19, Appendix; § 1502.20, Publication of the environmental impact statement; § 1502.22, Cost-benefit analysis; or E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1502.24, Environmental review and consultation requirements. CEQ invites comment on whether it should make any changes to these sections or other changes to part 1502. CEQ particularly invites comment on whether it should codify any or all of its 2023 GHG guidance, and, if so, which provisions of part 1502 or other provisions of the regulations CEQ should amend. CEQ proposes to incorporate some or all of the 2023 GHG guidance, which would require making additional changes in the final rule to codify the guidance in whole or part, as is or with changes, based on the comments CEQ receives on this proposed rule.69 1. Purpose (§ 1502.1) CEQ proposes to divide § 1502.1 into paragraphs (a), (b), and (c) to enhance readability and amend the text in the section to restore the approach taken in the 1978 regulations regarding the purpose of EISs as they relate to NEPA. In paragraph (a), CEQ proposes to restore language from the 1978 regulations clarifying that one purpose of an EIS is to serve as an action-forcing device for implementing the policies set out in section 101 of NEPA by ensuring agencies consider the environmental effects of their action in decision making. Congress did not enact NEPA to create procedure for procedure’s sake; NEPA’s procedures serve the substantive policies and goals Congress established and restoring the actionforcing language would clarify how EISs serve this broader function. This proposed change is consistent with the proposed edits in § 1500.1. See section II.B.1. In paragraph (b), CEQ proposes minor edits for clarity and consistency with other changes proposed throughout the regulations. CEQ proposes to change ‘‘It’’ to ‘‘Environmental impact statements’’ to improve readability in light of the proposal to add paragraphs to the section. CEQ also proposes to change ‘‘significant’’ to ‘‘important’’ before ‘‘environmental issues’’ and insert ‘‘reasonable’’ before ‘‘alternatives’’ for consistency with similar phrasing throughout the regulations. In paragraph (c), CEQ proposes to restore the 1978 language clarifying that an EIS is more than a disclosure document and that agencies must use EISs concurrently with other relevant information to make informed decisions. CEQ considers this language to provide important direction to agencies to ensure that EISs inform planning and decision making and do 69 See 2023 GHG Guidance, supra note 9. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 not serve as a perfunctory check-the-box exercise. 2. Implementation (§ 1502.2) CEQ proposes minor modifications in § 1502.2. First, CEQ proposes to restore from the 1978 regulations the introductory paragraph directing agencies to prepare EISs to meet the purpose established in § 1502.1. Upon reconsideration, CEQ is proposing to restore this language that was removed as unnecessary by the 2020 rule to provide clarity on the purpose of this section and improve readability. Next, in paragraph (b) CEQ proposes to replace the word ‘‘significant’’ with ‘‘important’’ and add reference to an environmental assessment for clarity and consistency. In paragraph (c), CEQ proposes to change ‘‘analytic’’ to ‘‘analytical,’’ and ‘‘project size’’ to ‘‘the scope and complexity of the action’’ since this provision is applicable to more than projects, and the length of an EIS should be proportional to the scope and complexity of the action analyzed in the document. CEQ proposes to delete ‘‘as interpreted in’’ before ‘‘the regulations in this subchapter’’ in paragraph (d), for the reasons discussed above for making a similar change in section II.B.5. CEQ is concerned that this phrase may inappropriately constrain agencies whose agency NEPA procedures go beyond the CEQ regulations. Under the proposal, EISs must state how alternatives and decisions will or will not achieve the requirements of NEPA, the CEQ regulations, and other environmental laws and policies. Finally, CEQ proposes to delete the word ‘‘final’’ in paragraph (f) because there is no distinction between a decision and final decision and for consistency with use of ‘‘decision’’ elsewhere in the regulations. 3. Scoping (§ 1502.4) As discussed in section II.C.7 on § 1501.9, ‘‘Public and governmental engagement,’’ and § 1501.11, ‘‘Programmatic review and tiering,’’ CEQ proposes to revise § 1502.4 by retitling it ‘‘Scoping’’ and moving provisions from the current 40 CFR 1501.9 to this section. This proposal would move the requirements of scoping for EISs to part 1502, which addresses the requirements of EISs, while moving requirements for determining the appropriate level of NEPA review applicable to all environmental reviews to § 1501.3(b). CEQ also proposes to revise the provisions moved from the current 40 CFR 1501.9 to align scoping with related changes made on public engagement in PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 49945 § 1501.9 and to add requirements focused on increasing efficiency in the EIS scoping process. CEQ has heard from multiple Federal agencies that there is uncertainty over the differences between the scoping process required for EISs and other public involvement or engagement requirements for NEPA reviews more generally. By proposing the revised§ 1501.9 on public and governmental engagement and moving the scoping provisions to § 1502.4, CEQ is emphasizing the importance of public engagement in the NEPA process generally, clarifying what requirements are unique to EISs, and clarifying what requirements and best practices agencies should consider regardless of the level of NEPA review. As noted in sections II.C.2 and II.C.9, with the revision of this section to address scoping, CEQ proposes to move the existing provisions of 40 CFR 1502.4, ‘‘Major Federal actions requiring the preparation of environmental impact statements’’ to §§ 1501.3 and 1501.11. CEQ proposes to move 40 CFR 1501.9(a), outlining the general purpose of scoping, to § 1502.4(a) and proposes to change the words ‘‘significant’’ and ‘‘non-significant’’ to ‘‘important’’ and ‘‘unimportant,’’ respectively, to align with CEQ’s proposed change to only use the word ‘‘significant’’ when describing effects. CEQ intends this to be a clarifying, non-substantive change. CEQ proposes to move 40 CFR 1501.9(c) on scoping outreach to paragraph (b) and add a sentence requiring agencies to facilitate notification to persons and agencies who may be interested or affected by an agency’s proposed action, consistent with the public engagement requirements in proposed § 1501.9. CEQ proposes to move 40 CFR 1501.9(b) on cooperating and participating agencies to paragraph (c) and retitle it ‘‘Inviting participation’’ to better reflect that the paragraph covers cooperating and participating agencies as well as proponents of the action and other likely affected or interested persons. CEQ notes that agencies invited to serve as cooperating or participating agencies should respond in a timely manner to facilitate the inclusion in the NOI any information that these agencies may need as part of the scoping process. CEQ proposes to move 40 CFR 1501.9(f) and (f)(1) through (f)(5) on additional scoping responsibilities to paragraph (d) and (d)(1) though (d)(5), respectively. Within this list, CEQ proposes modifications to paragraph (d)(1) to change ‘‘significant’’ to ‘‘important’’ to align with changes in paragraph (a) and the use of ‘‘significant’’ throughout the E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49946 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules regulations, which CEQ intends to be a clarifying, non-substantive change. CEQ proposes to move the requirements for an NOI from 40 CFR 1501.9(d) and (d)(1) through (d)(8) to § 1502.4(e) and (e)(1) through (e)(8), respectively. CEQ proposes to delete the reference to 40 CFR 1507.3(f)(3) because CEQ is proposing to remove that provision from the regulations, as discussed in section II.I.2. CEQ proposes to revise the language in paragraph (e)(7) for consistency with section 107(c) requiring the NOI to include a request for public comment on alternatives or impacts and on relevant information, studies, or analyses, delete the cross reference to § 1502.17 because CEQ proposes to broaden the language in § 1502.17. Further, this cross reference would no longer be necessary since CEQ proposes to remove the exhaustion process in 40 CFR 1500.3, which relies, in part, on this provision as the first step in that process. Additionally, the purpose of scoping is to receive input from the public on the proposed action and alternatives as well as other information relevant to consideration of the proposed action. CEQ considers the language in this paragraph to be redundant to the other required information in paragraph (e). To this list of NOI requirements, CEQ proposes to add paragraph (e)(9) to require the lead agency to list any cooperating and participating agencies that have been identified at the time of the NOI, as well as any information those agencies require to facilitate their decisions or authorizations related to the EIS. CEQ proposes to add this requirement to ensure that lead and cooperating agencies are communicating about any unique statutory or regulatory requirements of each agency so that the necessary information is included in the initial NOI and does not require reissuance of a second NOI by the cooperating or participating agency. For example, the U.S. Forest Service’s regulations regarding administrative review require the responsible official to disclose during the NEPA scoping process that a proposed project or activity or proposed plan, plan amendment, or plan revision is subject to one of its administrative review regulations. 36 CFR 218.7(a), 219.52(a). When the Forest Service acts as a cooperating agency and the lead agency does not include the necessary information in the NOI, the Forest Service then must issue its own NOI, which can add additional time in the NEPA process. CEQ also proposes to add paragraph (e)(10) to require that the NOI include a unique identification number for VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 tracking purposes that would be carried forward to all other documents related to the action such as the draft and final EISs and ROD. Identification numbers can help both the public and agencies track the progress of an EIS for a specific action as it moves through the NEPA process. CEQ has similarly proposed to require agencies to use tracking numbers for environmental assessments in § 1501.5. See section II.C.4. CEQ proposes to move and edit the second sentence regarding supplemental notices in 40 CFR 1507.3(f)(3) to paragraph (f), ‘‘Notices of withdrawal or cancellation,’’ to require that an agency publish in the Federal Register a notice of withdrawal of the NOI or a supplemental notice to inform the public that it is no longer considering a proposed action and, therefore, discontinuing preparation of an EIS. Agencies should publish such notices if they withdraw, cancel, or otherwise cease the consideration of a proposed action before completing a final EIS. CEQ proposes this requirement to codify common agency practice and to increase transparency to the public. Such a notice does not need to be lengthy, but should clearly reference the original NOI, name of the project in the original notice, unique identification number, and who to contact for additional information.70 Finally, CEQ proposes to move 40 CFR 1501.9(g) on NOI revisions to § 1502.4(g), updating the paragraph references and changing ‘‘significant’’ to ‘‘important’’ and ‘‘impacts’’ to ‘‘effects,’’ which CEQ intends to be a clarifying, non-substantive edit. These edits would align the text with the proposed changes to § 1502.9(d)(1)(ii). 4. Timing (§ 1502.5) CEQ proposes to make three clarifying amendments to § 1502.5. First, in paragraph (a), CEQ proposes to add ‘‘e.g.,’’ in the parenthetical ‘‘(go/no-go).’’ CEQ proposes this amendment in response to agency feedback during the development of the proposed rule to clarify that the feasibility analysis and the ‘‘go/no-go’’ stage may not occur at the same point in time and may differ depending on what is included in the feasibility analysis and how the agency has structured that analysis. This change would be consistent with the longstanding practice that agencies have 70 Examples of NOI Withdrawals: Powell Ranger District; Utah; Powell Travel Management Project; Withdrawal of Notice of Intent to Prepare an Environmental Impact Statement, 87 FR 1109 (Jan. 10, 2022); Withdrawal of the Notice of Intent to Prepare an Environmental Impact Statement for the Carpinteria Shoreline, a Feasibility Study in the City of Carpinteria, Santa Barbara County, CA, 86 FR 41028 (July 30, 2021). PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 discretion to decide the appropriate time to begin the NEPA analysis, but also that agencies should integrate the NEPA process and other planning or authorization processes early. See § 1501.2(a). Second, CEQ proposes to add ‘‘complete’’ in the first sentence of paragraph (b) to clarify that agencies must begin preparing an EIS after receiving a complete application, though agencies can elect to begin the process earlier if they choose to do so. CEQ also proposes to add ‘‘together and’’ in the second sentence of paragraph (b) to clarify further that agencies should work ‘‘together and with’’ potential applicants and other entities before receiving the application. Based on CEQ’s experience, early conversations and coordination among Federal agencies, the applicant, and other interested entities can improve efficiencies in the NEPA process and ultimately lead to better environmental outcomes. Additionally, similar to the proposed change to paragraph (a), this proposed change is consistent with other directions in the regulations to integrate the NEPA process and other processes early. See §§ 1500.5(h), (i), 1501.2(a). 5. Page Limits (§ 1502.7) CEQ proposes to amend § 1502.7, to align the text with section 107(e) of NEPA, which sets page limits for EISs at 150 pages or 300 pages for proposals of extraordinary complexity, not including citations or appendices. CEQ proposes to remove the requirement for the senior agency official of the lead agency to approve longer documents for consistency with the statute, which does not provide a mechanism to approve longer documents. CEQ strongly encourages agencies to prepare concise EISs that are both comprehensive and understandable to the decision maker and the public. Agencies should consider establishing within their procedures mechanisms to do so that will be most effective for their programs and activities. Such mechanisms might include placing technical analyses in appendices and summarizing them in plain language in the EIS; making use of visual aids, which are excluded from the definition of ‘‘page,’’ including sample images, maps, drawings, charts, graphs, and tables; and using insets, colors, and highlights to create visually interesting ways to draw attention to key information and conclusions. Agencies should consider making EISs and technical appendices machine readable, where possible and feasible, to facilitate data sharing and reuse in future E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 analyses. CEQ invites comment on whether CEQ should modify the regulations to appropriately encourage agencies to do so. 6. Writing; and Draft, Final, and Supplemental Statements (§§ 1502.8 and 1502.9) CEQ proposes minor edits to § 1502.8 to make the text consistent with modifications proposed in § 1502.12 regarding visual aids or charts. CEQ proposes to delete ‘‘as interpreted’’ before ‘‘in the regulations in this subchapter’’ in § 1502.9(b), as section II.B.5 explains. CEQ also proposes to clarify that it is the agency preparing a draft EIS that determines a draft statement requires supplementation to inform its decisionmaking process. In § 1502.9(c), CEQ proposes to clarify that a final EIS should ‘‘consider and respond’’ to comments rather than just ‘‘address’’ them, restoring language from the 1978 regulations and aligning the language with text at § 1503.4(a) regarding consideration of comments. The 2020 rule did not explain the change to ‘‘address,’’ 71 and CEQ is concerned that it could be read as weakening the standard for responding to comments within § 1502.9 and in § 1503.4. In paragraphs (d)(1)(ii) and (d)(4), CEQ proposes to replace the word ‘‘significant’’ with ‘‘important’’ and ‘‘impacts’’ with ‘‘effects’’ (except where ‘‘impact’’ is used as part of the term FONSI) for consistency, as discussed in section II.A. In paragraph (d)(1)(ii), CEQ also proposes to add ‘‘substantial or’’ before ‘‘important new circumstances or information,’’ for consistency with its use section 108(1) of NEPA, which confirms that an agency may rely on the analysis in an existing programmatic environmental document for five years without having to supplement or reevaluate the analysis, provided no substantial new circumstances or information exist. CEQ invites comment on whether it should revise the language in paragraphs (d)(1)(i) and (d)(1)(ii) to more specifically identify situations where supplementation is required. CEQ proposes to redesignate 40 CFR 1502.9(d)(4) as § 1502.9(e), title it ‘‘Reevaluation,’’ making this a standalone paragraph rather than a paragraph of supplemental EISs to clarify that reevaluation is a separate tool to document when supplementation is not required. CEQ proposes to add in paragraph (e) that agencies may ‘‘reevaluate’’ an EIS in part to determine ‘‘that the underlying assumptions of the analysis remains 71 See valid.’’ That language is generally consistent with section 108(2) of NEPA’s rule that an agency may rely on programmatic documents that are more than five years old if it reevaluates the underlying analysis. However, while section 108(2) requires reevaluation for programmatic documents more than five years old, CEQ proposes to leave agencies discretion over whether and when to reevaluate non-programmatic documents. 7. Recommended Format and Cover (§§ 1502.10 and 1502.11) CEQ proposes to revise the recommended format of an EIS. CEQ proposes to include the summary of scoping information required by § 1502.17 and the list of preparers required by § 1502.18 in appendices, rather than the main body of the EIS. Therefore, CEQ proposes to remove 40 CFR 1502.10(a)(7) through (9), and add a new paragraph (a)(7) requiring appendices including the scoping summary and list of preparers. CEQ proposes to clarify in § 1502.11(a) that the list of ‘‘responsible agencies’’ on an EIS cover are the lead, joint lead, and any cooperating agencies. Consistent with the proposed change in § 1502.4(e)(10), CEQ proposes to amend paragraph (g) to require the cover to include the identification number identified in the NOI to make clear the relationships of documents to one another and help the public and decision makers easily track the progress of the EIS as it moves through the NEPA process and to facilitate digitization and analysis. CEQ proposes to strike the existing requirement in 40 CFR 1502.11(g) to include on the cover of the final EIS the estimated preparation cost, a change that multiple Federal agencies requested during development of this proposed rule. The 2020 rule stated that including estimated total costs would be helpful for tracking such costs, and that agencies could develop their own methodologies for tracking EIS preparation costs in their agency NEPA procedures.72 However, Federal agency commenters stated that agencies typically do not estimate total costs, that they are difficult to monitor especially when project sponsors and contractors are bearing some of the cost, that the methodology for estimating costs is inconsistent across agencies, and that providing these estimates would be burdensome. At least one agency commenter noted that agencies inconsistently implemented a similar requirement in E.O. 13807, which 2020 Final Rule, supra note 36. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 72 Id. PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 49947 undermined the utility of the estimates, that tracking costs added a significant new burden on staff, and that it was not clear whether tracking such costs provided useful information for agencies or the public. CEQ does not consider EIS costs to be germane to the purpose of an EIS. Requiring that they be included on the cover could incorrectly lead the public and decision makers to believe that those costs relate to the proposed action addressed in the EIS. In general, the purpose of the cover is to indicate the subject matter of the document and provide the public with an agency point of contact, provide a short abstract of the EIS, and indicate the date by which the public must submit comments. Further, CEQ is concerned that requiring agencies to calculate the costs may unnecessarily add time to the EIS preparation process, particularly where aspects of an environmental review serve multiple purposes and allocating costs to NEPA compliance and other obligations may be complicated. CEQ recognizes the value in gathering information on overall costs, trends in costs, and approaches that can reduce costs, as this can provide a full picture of how and whether agencies are effectively using their resources, including to conduct environmental reviews. Each agency should track and monitor these costs through their own procedures and mechanisms and consult with CEQ about any lessons learned to inform CEQ’s ongoing evaluation of the efficiency and effectiveness of the NEPA process. CEQ does not consider requiring in the NEPA regulations that agencies publish costs on the cover of EISs to be the appropriate mechanism to develop that information. 8. Summary (§ 1502.12) CEQ proposes modifications to § 1502.12 to clarify the purpose of the summary and update what elements agencies should include in the summary with a goal of creating summaries that are more useful to the public and agencies. The summary serves to provide the public and decision makers with a clear, high-level overview of the proposed action and alternatives, the significant effects, and other critical information in the EIS. CEQ proposes a few changes to the second sentence in § 1502.12. First, CEQ proposes to replace the word ‘‘stress’’ with ‘‘include’’ in describing the contents of the summary to clarify that an adequate and accurate summary may include more than what is listed in § 1502.12. Next, CEQ proposes to clarify that the summary should summarize E:\FR\FM\31JYP3.SGM 31JYP3 49948 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 disputed issues, any issues to be resolved, and key differences among alternatives. CEQ proposes this change to provide the public and decision makers with a more complete picture of the disputed issues rather than focusing on ‘‘areas of’’ disputed issues and to facilitate informed decision making and transparency. These edits are also consistent with § 1502.14(b), which requires agencies to discuss alternatives in detail. Summarizing the key differences of alternatives could enhance the public’s and decision makers’ understandings of the relative trade-offs of the alternatives considered in detail. CEQ also proposes to add language to the second sentence to require that the summary identify the environmentally preferable alternative or alternatives. Adding the environmentally preferable alternative to the summary would enhance the public’s and decision makers’ understandings of the alternative or alternatives that will best promote the national environmental policy as expressed in section 101 of NEPA by providing a summary of that alternative early on in the document. CEQ proposes to add a fourth sentence to § 1502.12 to make summaries easier to read and understand by requiring agencies to write the summary in plain language and encouraging use of visual aids and charts. Existing regulatory text already requires agencies to write environmental documents in plain language as a means to preparing readable, concise, and informative documents. See, e.g., §§ 1500.4 and 1502.8. Agencies commonly use visual aids, such as graphics, maps, and pictures, throughout their environmental documents. Finally, similar to other changes proposed regarding page limits, CEQ proposes to allow agencies flexibility in the length of a summary. In the existing text, summaries are limited to 15 pages. CEQ proposes instead to encourage summaries to not exceed 15 pages. Although summaries should be brief, CEQ acknowledges with this proposed change that some proposed actions are more complex and may require additional pages. 9. Purpose and Need; Alternatives Including the Proposed Action (§§ 1502.13 and 1502.14) CEQ proposes to revise § 1502.13 to align the language with the text of section 107(d) of NEPA requiring an EIS to include statement that briefly summarizes the underlying purpose and need for the proposed agency action. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 CEQ proposes revisions to § 1502.14 to promote the rigorous analysis and consideration of alternatives, consistent with the longstanding principle that agencies take a ‘‘hard look’’ at their actions. To that end, CEQ proposes to reintroduce much of the 1978 text to § 1502.14 that the 2020 rule removed and modernize it to ensure agency decision makers are well-informed. Many commenters on the Phase 1 rule requested CEQ revise this provision to revert to the 1978 language or revise it to ensure agencies fully explore the reasonable alternatives to their proposed actions.73 CEQ proposes to revise the introductory paragraph of § 1502.14 to reinstate the language from the 1978 regulations that the alternatives analysis ‘‘is the heart of the environmental impact statement.’’ While the 2020 rule described this clause as ‘‘colloquial language’’ to justify its removal,74 CEQ now considers this to be an integral policy statement necessary to emphasize the importance of the alternatives analyses to allow decision makers to assess a reasonable range of possible approaches to the matters before them and notes that numerous court decisions quoted this language from the 1978 regulations in stressing the importance of the alternatives analysis. See, e.g., Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1243 (10th Cir. 2011). Numerous commenters on the 2020 rule and the 2022 Phase 1 rule supported inclusion of this language.75 CEQ proposes a clarifying edit in the introductory paragraph, replacing ‘‘present’’ the environmental effects with ‘‘identify’’ the ‘‘reasonably foreseeable’’ environmental effects consistent with § 1500.2(e) and section 102(2)(C)(i) of NEPA. Finally, in the introductory paragraph, CEQ proposes to state that the alternatives analysis should sharply define issues for the decision maker and the public and provide a clear basis for choice in the options. CEQ proposes reintroducing this language from the 1978 regulations because it provides an important policy statement, concisely explaining the end goals for the alternatives analysis. CEQ proposes in paragraph (a) to restore the clause that agencies must ‘‘rigorously explore and objectively’’ evaluate reasonable alternatives at the beginning of the first sentence. CEQ proposes to reinsert this language because it provides a standard for how 73 See Phase 1 Response to Comments, supra note 48, at 162. 74 2020 Final Rule, supra note 36, at 43330. 75 See, e.g., 2020 Response to Comments, supra note 63, at 274; Phase 1 Response to Comments, supra note 48, at 55. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 agencies should analyze alternatives. CEQ proposes to add two additional sentences to paragraph (a). One statement would clarify that agencies need not consider every conceivable alternative to a proposed action but rather must consider a reasonable range of alternatives that fosters informed decision making. CEQ proposes to add this sentence to replace the statement in the current 40 CFR 1502.14(f) requiring agencies to limit their consideration to a reasonable number of alternatives, which CEQ proposes to strike. This proposed language is consistent with longstanding CEQ guidance 76 and would reinforce that the alternative analysis is not boundless; the key is to provide the decision maker with reasonable options to ensure informed decision making. To that end, CEQ also proposes in paragraph (a) to clarify that agencies have the discretion to consider reasonable alternatives not within their jurisdiction, but NEPA and the CEQ regulations generally do not require them to do so. Such alternatives may be relevant, for instance, when agencies are considering program-level decisions 77 or anticipate funding for a project not yet authorized by Congress.78 CEQ anticipates that such consideration would be a relatively infrequent occurrence and notes that such alternatives would still need to be technically and economically feasible and meet the purpose and need for the proposed action, consistent with the definition of ‘‘reasonable alternatives.’’ CEQ considers adding this language to paragraph (a) to improve the consistency of the regulations with the ‘‘hard look’’ principle of NEPA. Some commenters—both on the 2020 rule and the Phase 1 rule—supported the removal of the 1978 regulations’ requirement to consider alternatives outside the jurisdiction of the lead agency, contending that such alternatives are inherently infeasible.79 However, many commenters on the 76 Forty Questions, supra note 4. e.g., Fed. R.R. Admin., Final Program Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for the proposed California High-Speed Train System (2005), https:// hsr.ca.gov/programs/environmental-planning/ program-eir-eis-documents-for-the-statewide-highspeed-rail-system-tier-1/final-programenvironmental-impact-report-environmentalimpact-statement-eir-eis-for-the-proposedcalifornia-high-speed-train-system-2005/. 78 See, e.g., U.S. Army Corps of Eng’rs, Final Environmental Impact Statement for Savannah Harbor Expansion Project (rev. July 2012), https:// www.sas.usace.army.mil/Missions/Civil-Works/ Savannah-Harbor-Expansion/Final-EnvironmentalImpact-Statement/. 79 2020 Final Rule, supra note 36, at 43330–31; 2020 Response to Comments, supra note 63, at 45, 57. 77 See, E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 Phase 1 rule supported the reintroduction of this language.80 CEQ’s proposal is intended to strike a balance; the proposal would not require agencies to consider alternatives outside their jurisdiction or preclude agencies from doing so. Further, it would retain the direction that the agency need only consider reasonable alternatives. CEQ proposes to replace paragraph (f) with a requirement to identify the environmentally preferable alternative. In addition to the proposed definition of environmentally preferable alternative in § 1508.1(l), this provision would describe elements that the environmentally preferable alternative may generally include. The list uses ‘‘or’’ to make clear that the environmentally preferable alternative need not include each delineated element and recognizes that identifying the environmentally preferable alternative may entail making tradeoffs in some cases. This approach would provide agencies flexibility to rely on their discretion and expertise to strike an appropriate balance in identifying the environmentally preferable alternative. Finally, paragraph (f) would clarify that the environmentally preferable alternative may be the proposed action, no action alternative, or a reasonable alternative. Agencies may identify more than one environmentally preferable alternative as they deem appropriate. The CEQ regulations, at 40 CFR 1505.2, always have required agencies to identify the environmentally preferable alternative in a ROD. CEQ’s proposal would provide more context for what this alternative entails, improving consistency and furthering NEPA’s goal of ensuring that agencies make informed decisions regarding actions that impact the environment. Additionally, requiring that the draft and final EIS identify the environmentally preferable alternative would provide more transparency to the public as to the agency’s decisionmaking process at an earlier stage, as well as an opportunity to comment on it before the agency makes its decision. 10. Affected Environment (§ 1502.15) CEQ proposes revisions to § 1502.15 to emphasize the use of high-quality information, including best available science and data; clarify considerations of reasonably foreseeable environmental trends; and emphasize efficiency and concise documents. CEQ also proposes to divide § 1502.15 into paragraphs (a), (b), and (c) to improve readability. 80 Phase 1 Response to Comments, supra note 48, at 162. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 CEQ proposes to discuss data in a new paragraph (b), which would encourage agencies to use high-quality information, including best available science and data, in recognition that these should inform all agency decisions. This paragraph would articulate clearly NEPA’s statutory mandate that science inform agencies’ decisions as part of a systematic, interdisciplinary approach. See 42 U.S.C. 4332(2)(A). In addition, the paragraph would clarify that this information should inform agencies’ consideration of ‘‘reasonably foreseeable environmental trends,’’ noting explicitly that this includes anticipated climaterelated changes to the environment. CEQ proposes this language to clarify that agencies should consider reasonably foreseeable future climate conditions on affected areas rather than merely describing general climate change trends at the global or national level. In line with scientific projections, accurate baseline assessment of the affected environment over an action’s lifetime should incorporate forwardlooking climate projections rather than relying on historical data alone. CEQ also proposes language in paragraph (b) to connect the description of baseline environmental conditions and reasonably foreseeable trends to an agency’s analysis of environmental consequences and mitigation measures. CEQ proposes to move the second and third through fifth sentences of 40 CFR 1502.15 to new paragraph (c). CEQ also proposes minor revisions to the relocated language and a new sentence to provide that agencies may combine the affected environment and environmental consequences sections in an EIS, which should be no longer than necessary to understand the relevant affected environment and the effects of the alternatives. 11. Environmental Consequences (§ 1502.16) CEQ proposes several changes to § 1502.16 to clarify priorities and methods of analysis and make updates to ensure that agencies integrate climate change and environmental justice considerations into the analysis of environmental effects. CEQ proposes in paragraph (a)(1) to modify the sentence requiring agencies to base the comparison of the proposed action and reasonable alternatives on the discussion of effects to add ‘‘reasonably foreseeable’’ before ‘‘environmental effects’’ for consistency with the text of section 102(2)(C)(i) of NEPA and to focus the comparison of the proposed action and reasonable alternatives on the ‘‘significant or PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 49949 important effects’’ to emphasize that agencies’ analyses of effects should be proportional to the significance of the effects. The FRA’s amendments to NEPA codified the longstanding principle from the 1978 regulations and long recognized by the courts that effects must be reasonably foreseeable. Consistent with this provision, agencies should identify the effects they deem significant whenever possible to inform the public and decision makers. Finally, CEQ proposes adding a new sentence to the end of paragraph (a)(1) clarifying the proper role of the no action alternative to ensure that the comparative analysis is not distorted by selecting a different alternative (for example, the preferred alternative) as the baseline against which all other alternatives are measured. In formulating the no action alternative, agencies should make reasonable assumptions. CEQ invites comment on whether it should include additional direction or guidance regarding the no action alternative in the final rule. Next, CEQ proposes to add ‘‘reasonably foreseeable’’ in paragraph (a)(1) before ‘‘environmental effects’’ for consistency with section 102(2)(C)(i) of NEPA and in paragraph (a)(2) before ‘‘adverse environmental effects’’ for consistency with section 102(2)(C)(ii) of NEPA. CEQ proposes to add a new paragraph (a)(3) requiring an analysis of effects of the no action alternative, including any adverse environmental effects consistent with section 102(2)(C)(iii) of NEPA, which requires an analysis of any negative environmental impacts of not implementing the proposed action in the case of a no action alternative. CEQ interprets ‘‘negative’’ to have the same meaning as the term ‘‘adverse.’’ For example, an environmental restoration project that helps mitigate the effects of climate change and restores habitat could have adverse effects if it were not implemented or the construction of a commuter transit line could have adverse effects from persistent traffic congestion, air pollution, and related effects to environmental justice communities if it were not implemented. To accommodate this additional paragraph, CEQ proposes to redesignate 40 CFR 1502.15(a)(3) through (a)(5) as paragraphs (a)(4) through (a)(6) accordingly. In paragraph (a)(5), CEQ proposes to insert ‘‘Federal’’ before ‘‘resources’’ for consistency with section 102(2)(C)(v) of NEPA. Then, CEQ proposes to add reference to two specific elements and revise the reference to an existing element that agencies must include in the analysis of environmental consequences, all related E:\FR\FM\31JYP3.SGM 31JYP3 49950 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 to climate change. First, CEQ proposes to revise paragraph (a)(6) to broaden it from land use plans to plans generally and clarify that this element includes plans and policies addressing climate change. Second, CEQ proposes to add a new paragraph (a)(7) to clarify that the discussion of environmental consequences in an EIS must include any reasonably foreseeable climate change-related effects, including effects of climate change on the proposed action and alternatives (which may in turn alter the effects of the proposed action and alternatives). CEQ would then redesignate the paragraphs at 40 CFR 1502.16(a)(6) and(a)(7) as paragraphs (a)(8) and (a)(9), respectively. Third, CEQ proposes to add a new paragraph (a)(10), which would require agencies to address any risk reduction, resiliency, or adaptation measures included in the proposed action and alternatives. This would ensure agencies consider resiliency to the risks associated with a changing climate, including wildfire risk, extreme heat and other extreme weather events, drought, flood risk, loss of historic and cultural resources, and food scarcity. This analysis would further NEPA’s mandate that agencies use ‘‘the environmental design arts’’ in decision making and consider the relationship between the ‘‘uses’’ of the environment ‘‘and the maintenance and enhancement of long-term productivity.’’ 42 U.S.C. 4332(2)(A) and (2)(C)(iv). It also would help achieve NEPA’s goals of protecting the environment across generations, preserving important cultural and other resources, and attaining ‘‘the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.’’ 42 U.S.C. 4331(b)(3). These proposed revisions would clarify that agencies must address both effects of the proposed action and alternatives on climate change, and the resiliency of the proposed action and alternatives in light of climate change.81 These proposed revisions are consistent with what NEPA has long required: using science to make informed decisions. This proposal is also consistent with NEPA’s specific requirement to study the effects of the 81 Such analysis is not new and CEQ has issued guidance consistent with these proposed provisions for nearly a decade. See generally CEQ, Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 81 FR 51866 (Aug. 8, 2016), https://ceq.doe.gov/docs/ceqregulations-and-guidance/nepa_final_ghg_ guidance.pdf, and 2023 GHG Guidance, supra note 9. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 Federal action because effects on the Federal action due to climate change may in turn alter the effects that the project has on its environment. These proposed revisions also align well with the definition of effects to encompass reasonably foreseeable indirect and cumulative effects, which are integral to NEPA analyses. To accommodate the new paragraph (a)(10), CEQ proposes to redesignate 40 CFR 1502.16(a)(8) through (a)(10) as paragraphs (a)(11) through (a)(13), respectively. Finally, CEQ proposes to add paragraph (a)(14) to provide that agencies must discuss the potential for disproportionate and adverse health and environmental effects on communities with environmental justice concerns. The addition of this paragraph would clarify that EISs generally must include an environmental justice analysis to ensure that agency actions do not unintentionally impose disproportionate and adverse effects on these communities. Finally, CEQ proposes to strike ‘‘and give appropriate consideration to’’ from paragraph (b). CEQ proposes this revision to remove unnecessary language that could be read to require the decision maker to make consideration of such effects a higher priority than other effects listed in this section. 12. Summary of Scoping Information (§ 1502.17) CEQ proposes to revise § 1502.17 and retitle it ‘‘Summary of scoping information’’ to more accurately reflect the proposed content of this section and align it with the common practice of what many agencies produce via scoping reports. CEQ proposes other changes in this section to simplify and remove unnecessary or redundant text and clarify requirements. CEQ proposes to revise paragraph (a) to require agencies to include a summary of the information they receive from commenters during the scoping process in draft EISs consistent with the proposed revisions to §§ 1500.3, 1501.9, and 1502.4. CEQ proposes to replace ‘‘State, Tribal, and local governments and other public commenters’’ with ‘‘commenters’’ because this phrase is all encompassing. CEQ also proposes to clarify that a draft EIS should include a summary of information, including alternative and analyses, that commenters submitted during scoping. This change provides agencies flexibility to develop a broader summary of information received during scoping. While agencies should still summarize alternatives and analyses, this provision would not require them PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 to provide a specific summary of every individual alternative, piece of information, or analysis commenters submit during scoping. CEQ proposes to redesignate paragraph (a)(1) as paragraph (b) and modify it to clarify that agencies can either append to the draft EIS or otherwise make publicly available comments received during scoping. This modification clarifies that the requirements of this paragraph can be met through means other than an appendix, such as a scoping report, which is common practice for some Federal agencies. CEQ proposes a conforming edit in paragraph (d) of § 1502.19, ‘‘Appendix,’’ for consistency with this language. Finally, CEQ proposes to delete the current 40 CFR 1502.17(a)(2) and (b) because the requirements of these paragraphs are redundant to the requirements in part 1503 for Federal agencies to invite comment on draft EISs in their entirety and review and respond to public comments. 13. Incomplete or Unavailable Information (§ 1502.21) CEQ proposes one revision to paragraph (b) of § 1502.21 to strike ‘‘but available,’’ which addresses situations where an agency encounters incomplete or unavailable information during its evaluation of a proposed action’s reasonably foreseeable significant adverse effects. CEQ proposes to strike ‘‘but available,’’ a phrase added by the 2020 rule, to clarify that agencies must obtain information relevant to reasonably foreseeable significant adverse effects that is essential to a reasoned choice between alternatives where the overall costs of doing so are not unreasonable, and the means of obtaining that information are known. This qualifier, which CEQ proposes to remove, could be read to significantly narrow agencies’ obligations to obtain additional information even when it is easily attainable and the costs are reasonable. CEQ has reconsidered this change and now considers it vital to the NEPA process for agencies to undertake studies and analyses where necessary rather than relying solely on available information where the costs of obtaining the relevant information are not unreasonable. Agency feedback received during the development of this proposed rule supports this change. Agency NEPA experts indicated that this qualifier could be read to say that agencies do not need to collect additional information that could and should otherwise inform the public and decision makers. Removing this phrase also would be E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 consistent with other provisions in the regulations emphasizing the importance of relying on high-quality and accurate information in implementing NEPA. See, e.g., § 1500.1(b). 14. Methodology and Scientific Accuracy (§ 1502.23) CEQ proposes changes to § 1502.23 to promote use of high-quality information, such as best available science and data; require agencies to explain assumptions; and, where appropriate, incorporate projections, including climate change-related projections, in the evaluation of reasonably foreseeable effects. CEQ proposes to separate existing 40 CFR 1502.23 into paragraphs (a) and (b), with some modification, and add a new paragraph (c). The proposed changes to this section would provide additional guidance on how Federal agencies can meet NEPA’s statutory requirement to ‘‘study, develop, and describe appropriate alternatives to recommended courses of action in any proposal’’ as set forth in section 102(2)(H) of NEPA. In paragraph (a), CEQ proposes to reinstate the term high-quality information, as used in the 1978 regulations, and clarify that such information includes best available science and reliable data, models, and resources. Also, CEQ proposes clarifying edits, including moving the word ‘‘existing’’ in the second sentence of paragraph (a) to the end of the sentence and adding reference to sources and materials. CEQ proposes these changes to clarify that while agencies must use reliable data and resources, which can include existing data and resources, they are not limited to use of existing materials. Public commenters on the 2020 rule and Federal agency experts who provided input on this proposed rule raised concerns that the 2020 language could limit agencies to ‘‘existing’’ resources and preclude agencies from undertaking site surveys, conducting investigation, and performing other forms of data collection, which have long been standard practice when analyzing an action’s potential environmental effects and may be necessary for agencies to understand particular effects. For example, in the context of analyzing historical, cultural, or biological effects, survey work is often revisited and reassessed periodically, and an agency should not be required to rely on outdated data. While there are numerous reliable data sources for a variety of resources analyzed in NEPA documents, and the CEQ regulations encourage the use of existing VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 information wherever possible, see § 1501.12, agencies should be permitted to exercise their good judgment in determining when new data and analyses are necessary. Indigenous Knowledge also can be a source of highquality information. CEQ proposes to add a new sentence at the end of paragraph (a) encouraging agencies to explain their assumptions and any limitations of their models and methods. CEQ proposes this addition to support this section’s overall purpose of ensuring the integrity of the discussions and analyses in environmental documents. Additionally, this would codify typical agency practice to explain relevant assumptions or limitations of the information in environmental documents. CEQ proposes to strike the statement that agencies are not required to undertake new research to inform their analyses consistent with the changes to paragraph (a). As noted in this section, it is common practice for agencies, when necessary or appropriate, to engage in additional research and create new data based on an action’s particular circumstances (such as the affected environment) when analyzing proposed actions under NEPA. Further, by simply striking the sentence added in 2020, CEQ is not proposing to add an acrossthe-board requirement that agencies must undertake new research in all cases. Finally, CEQ proposes to add a new paragraph (c), which would require agencies to use projections when evaluating reasonably foreseeable effects, including climate change-related effects, where appropriate. CEQ also proposes to clarify that such projections may employ mathematical or other models that project a range of possible future outcomes, so long as agencies disclose the relevant assumptions or limitations. This addition is consistent with the amendments proposed in paragraphs (a) and (b). Based on existing agency practice and academic literature on climate science, agencies can and do use reliable projections to analyze reasonably foreseeable climate changerelated effects. Where available and appropriate, agencies also can use or rely on projections that are scaled to a more targeted and localized geographic scope, such as land use projections, air emissions, and modeling, or to evaluate climate effects experienced locally in relation to the proposed action. When doing so, agencies should explain the basis for relying on those projections and their underlying assumptions. Climate projections can vary based on different factors and assumptions such as geography, location, and existing and PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 49951 future GHG emissions. For that reason, agencies can use models that analyze a range of possible future outcomes, but agencies must disclose the underlying relevant assumptions or limitations of those models. CEQ expects that modeling techniques will continue to improve in the future, resulting in more precise climate projections. To be consistent with proposed changes with paragraph (a) in this section, as climate modeling techniques advance, agencies should rely on high-quality information when evaluating reasonably foreseeable climate change-related effects. E. Proposed Revisions To Update Part 1503, Commenting on Environmental Impact Statements CEQ is proposing substantive revisions to all sections of part 1503, except § 1503.2, Duty to comment. CEQ invites comments on whether it should make changes to this section or other changes to part 1503. 1. Inviting Comments and Requesting Information and Analyses (§ 1503.1) CEQ proposes to delete 40 CFR 1503.1(a)(3) requiring agencies to invite comment specifically on the submitted alternatives, information, and analyses and the summary thereof for consistency with proposed changes to §§ 1500.3 and 1502.17. This requirement would be unnecessary with the removal of the exhaustion provision. It also is redundant as Federal agencies invite comment on all sections of draft EISs and therefore need not invite comment on one specific section of an EIS. 2. Specificity of Comments and Information (§ 1503.3) CEQ proposes edits to § 1503.3 to clarify the expected level of detail in comments submitted by the public and other agencies to facilitate their consideration by agencies in the decision-making process. The proposal would remove or otherwise modify provisions that could inappropriately restrict public comments and place unnecessary burden on public commenters. CEQ proposes to remove language from § 1503.3(a) added in the 2020 rule that requires comments to be as detailed as necessary to meaningfully participate and fully inform the agency of the commenter’s position because this requirement could lead commenters to provide unnecessarily long comments that will impede efficiency. Paragraph (a) already requires comments to be ‘‘as specific as possible,’’ and the language CEQ proposes to remove could be read E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49952 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules to require commenters to provide detailed information that is not pertinent to the NEPA analysis about the commenter’s position on the proposed action, the project proponent, the Federal agency, or other issues. For example, the text could be read to require a commenter to provide a detailed explanation of a moral objection to a proposed action or a personal interest in it if those inform the commenter’s position on the project. The text also could imply that commenters must either be an expert on the subject matter or hire an expert to provide the necessary level of detail. The current text could be read to imply that commenters are under an obligation to collect or produce information necessary for agencies to fully evaluate issues raised in comments even if the commenters do not possess that information or the skills necessary to produce it. Some commenters on the 2020 rule raised this issue, expressing concerns that this language could be read to require the general public to demonstrate a level of sophistication and technical expertise not required historically under the CEQ regulations or consistent with the NEPA statute.82 Commenters also expressed concern that the requirement would discourage or preclude laypersons or communities with environmental justice concerns from commenting.83 Other commenters on the 2020 rule expressed concern that the changes would shift the responsibility of analysis from the agencies to the general public.84 Finally, CEQ proposes to remove this language because the requirements that comments provide as much detail as necessary to ‘‘meaningfully’’ participate and ‘‘fully inform’’ the agency are vague and put the burden on the commenter to anticipate the appropriate level of detail to meet those standards. CEQ also proposes to delete from paragraph (a) language describing the types of impacts that a comment should cover, including the reference to economic and employment impacts. CEQ proposes this deletion because this language imposes an inappropriate burden on commenters by indicating that comments need to explain why an issue matters for economic and employment purposes. NEPA requires agencies to analyze the potential effects on the human environment and does not require that these effects be specified in economic terms or related specifically to employment 82 2020 Response to Comments, supra note 63, at 326–27. 83 Id. at 327. 84 Id. at 328. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 considerations. Therefore, it is inappropriate to single out these considerations for special treatment and unduly burdensome to expect commenters to address economic and employment impacts. The proposed revision would not have the effect of limiting commenters from addressing these issues but would avoid the implication that members of the public are welcome to comment only if they address those issues. CEQ proposes to delete the reference to ‘‘other impacts affecting the quality of the human environment’’ because it is unnecessary and duplicative of ‘‘consideration of potential effects and alternatives.’’ Finally, in paragraph (a), CEQ proposes changes to the last sentence to clarify that, only where possible, the public should include citations or proposed changes to the EIS or describe the data, sources, or methodologies that support the proposed changes in their comments. While such information is helpful to the agency whenever it is readily available, CEQ has concerns that this could be construed to place an unreasonable burden on commenters. CEQ proposes to strike 40 CFR 1503.3(b) and redesignate 40 CFR 1503.3(c) through (d) as § 1503.3(b) and (c). CEQ proposes the deletion of paragraph (b) for consistency with proposed changes to § 1500.3’s exhaustion requirement and corresponding changes to § 1502.17. The paragraph also is unrelated to the subject addressed in § 1503.3, which addresses the specificity of comments, rather than when commenters should file their comments. Further, agencies have long had the discretion to consider special or unique circumstances that may warrant consideration of comments outside those time periods. CEQ proposes to strike ‘‘site-specific’’ in paragraph (c) to clarify that cooperating agencies must identify additional information needed to address significant effects generally. This proposed change would enhance efficiency because it would ensure that cooperating agencies have the information they need to fully comment on EISs averting potential delay in the environmental review process. Finally, CEQ proposes in paragraph (d) to strike the requirement for cooperating agencies to cite their statutory authority for recommending mitigation. This requirement is unnecessary since, at this stage, those agencies with jurisdiction by law have already established their legal authority to participate as cooperating agencies. CEQ also proposes in paragraph (d) to replace the reference to ‘‘permit, license, or related requirements’’ with PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 ‘‘authorizations’’ because the definition of ‘‘authorization’’ in § 1508.1(c) is inclusive of those terms. 3. Response to Comments (§ 1503.4) CEQ proposes to revise paragraph (a) to clarify that agencies must respond to comments but may do so either individually, in groups, or in some combination thereof. The current use of ‘‘may,’’ which the 2020 regulations changed from ‘‘shall,’’ creates ambiguity that could be read to mean that agencies have discretion in whether to respond to comments at all, not just the way they respond, i.e., individually or in groups. Some comments on the 2020 proposed rule construed the change to ‘‘may’’ as weakening the longstanding requirement to respond to comments. The proposed change removes any ambiguity created by revisions to the paragraph in the 2020 regulations and is consistent with the longstanding requirement and expectation for agencies to respond to comments received on an EIS while also clarifying that agencies have discretion on how to respond to comments to promote the efficiency of the NEPA process. In paragraph (c), CEQ proposes changes to clarify that when an agency uses an errata sheet, the agency must publish the entire final EIS, which would include the errata sheet, the draft EIS, and the comments with their responses. CEQ proposes these edits to reflect the typical Federal agency practice and to reflect the current requirement for electronic submission of EISs rather than the old practice of printing EISs for distribution. F. Proposed Revisions To Update Part 1504, Pre-Decisional Referrals to the Council of Proposed Federal Actions Determined To Be Environmentally Unsatisfactory 1. Purpose (§ 1504.1) CEQ proposes in § 1504.1(a) to add language encouraging agencies to engage early with each other to resolve interagency disagreements concerning proposed major Federal actions before such disputes are referred to CEQ. CEQ also proposes to add language clarifying that part 1504 establishes procedures for agencies to submit requests to CEQ for informal dispute resolution, expanding the purpose to reflect changes proposed in §§ 1504.2 and described in section II.F.2. This proposal is consistent with CEQ’s ongoing role in promoting the use of environmental collaboration and conflict resolution,85 and serving as a 85 See OMB & CEQ, Memorandum on Environmental Collaboration and Conflict Resolution (Sept. 7, 2012), https://www.energy.gov/ E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 convener and informal mediator for interagency disputes. CEQ strongly encourages agencies to resolve disputes informally and as early as possible so that referrals under part 1504 are used only as a last resort. Early resolution of disputes is essential to ensuring an efficient and effective environmental review process. In paragraph (b), which addresses EPA’s role pursuant to section 309 of the Clean Air Act, CEQ proposes to strike the parenthetical providing the term ‘‘environmental referrals,’’ as this term is not used elsewhere in part 1504. Further, CEQ notes that EPA’s section 309 authority is distinct from the ability of an agency to make a referral pursuant to this part. Finally, CEQ proposes to revise the second sentence in paragraph (c) to eliminate the passive voice to improve clarity. 2. Early Dispute Resolution (§ 1504.2) As discussed further in section II.F.3, CEQ proposes to move the provisions in existing 40 CFR 1504.2 to § 1504.3(a) to repurpose § 1504.2 for a new section on early dispute resolution. CEQ proposes to add this section to codify the current practice of agencies to engage with one another and enlist CEQ to help resolve interagency disputes. The added text would codify CEQ’s role in convening discussions, mediating issues, and recommending resolutions. While the proposed provisions in § 1504.2 are non-binding, they would serve to encourage agencies to use this informal process to resolve interagency disputes early in the process and provide transparency to the public that this process occurs. Proposed paragraph (a) would encourage agencies to engage in interagency coordination and collaboration within planning and decision-making processes and to identify and resolve interagency disputes. Further, paragraph (a) would encourage agencies to elevate issues to appropriate agency officials or to CEQ in a timely manner that is consistent with the schedules for the proposed action established under § 1501.10. Paragraph (b) would allow a Federal agency to request that CEQ engage in informal dispute resolution. When making such a request to CEQ, the agency must provide CEQ with a summary of the proposed action, information on the disputed issues, and agency points of contact. CEQ proposes sites/default/files/OMB_CEQ_Env_Collab_Conflict_ Resolution_20120907-2012.pdf; OMB & CEQ, Memorandum on Environmental Conflict Resolution (Nov. 28, 2005), https://ceq.doe.gov/ docs/ceq-regulations-and-guidance/regs/OMB_ CEQ_Joint_Statement.pdf. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 this provision to codify the longstanding practice of CEQ helping to mediate and resolve interagency disputes outside of and well before the formal referral process (§ 1504.3) and to provide additional direction to agencies on what information CEQ needs to effectively mediate. Paragraph (b) would provide CEQ with several options to respond to a request for informal dispute resolution, including requesting additional information, convening discussions, and making recommendations, as well as the option to decline the request. 3. Criteria and Procedure for Referrals and Response (§ 1504.3) As noted in section II.F.2, CEQ proposes to move the criteria for referral currently set forth in 40 CFR 1504.2 to a new § 1504.3(a) and redesignate 40 CFR 1504.3(a) through (h) as § 1504.5(b) through (i), respectively. As a result of this consolidation, CEQ would revise the title of § 1504.3 to ‘‘Criteria and procedure for referrals and response.’’ The criteria and procedures for agencies to make a referral apply to agencies that make a referral under the NEPA regulations and do not apply to EPA when exercising its referral authority under section 309 of the Clean Air Act (42 U.S.C. 7609). G. Proposed Revisions to NEPA and Agency Decision Making (Part 1505) 1. Record of Decision in Cases Requiring Environmental Impact Statements (§ 1505.2) CEQ proposes modifications in § 1505.2 to align this section with other proposed changes to the regulations and clarify the alternatives agencies must identify in RODs. CEQ also proposes to modify the provision on mitigation. As discussed further in this section, CEQ proposes to strike 40 CFR 1505.2(b), make 40 CFR 1505.2(a) an undesignated introductory paragraph in § 1505.2, and redesignate 40 CFR 1505.2(a)(1) through (3) as § 1505.2(a) through (c), respectively. In § 1505.2(b), CEQ proposes to restructure the first two sentences to improve readability and clarify that agencies must identify one or more environmentally preferable alternatives in the ROD, consistent with proposed changes to § 1502.14(f) requiring agencies to identify them in the EIS and § 1508.1(l), defining ‘‘environmentally preferable alternative.’’ Further, in the second sentence of paragraph (b), CEQ proposes to add ‘‘environmental’’ to the list of relevant factors upon which an agency may base discussion of preferences among alternatives. In paragraph (c), PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 49953 CEQ proposes to change ‘‘avoid or minimize’’ to ‘‘mitigate’’ in the first sentence for consistency with the remainder of the paragraph. CEQ also proposes to clarify that any mitigation must be enforceable, such as through permit conditions or grant agreements, if an agency includes it as a component of a proposed action and relies on its implementation to analyze the action’s reasonably foreseeable environmental effects. Additionally, CEQ proposes to require agencies to identify the authority for enforceable mitigation, and adopt a mitigation and compliance plan consistent with § 1505.3(c). CEQ proposes to strike 40 CFR 1505.2(b), which requires a decision maker to certify in the ROD that the agency has considered all of the alternatives, information, and analyses submitted under 40 CFR 1502.17(b) and states that such certification is entitled to a presumption that the agency has considered such information in the EIS. CEQ proposes to strike 40 CFR 1505.2(b) because it is redundant—the discussion in the ROD and the decision maker’s signature on such document has long served to verify the agency has considered the EIS’s analysis of the proposed action, alternatives, and effects, as well as the public comments received. Additionally, while CEQ agrees that agencies are entitled to a presumption of regularity under the tenets of generally applicable administrative law, this presumption does not arise from NEPA, and therefore, CEQ considers it inappropriate to address in the NEPA regulations. Finally, CEQ proposes to strike 40 CFR 1505.2(b) consistent with the proposal to remove the exhaustion provision in 40 CFR 1500.3, as discussed in section II.B.2. As CEQ discussed in that section, CEQ now considers it more appropriately the purview of the courts to make determinations regarding exhaustion. The certification requirement would no longer be necessary since it was intended to trigger the exhaustion provision in judicial review. 2. Implementing the Decision (§ 1505.3) CEQ proposes revisions to § 1505.3 to add provisions for mitigation and related monitoring and compliance plans. To accommodate the proposed changes, CEQ proposes to designate the undesignated introductory paragraph of 40 CFR 1505.3 as paragraph (a) and redesignate 40 CFR 1505.3(a) and (b) as § 1505.3(a)(1) and (a)(2), respectively. CEQ proposes to add new § 1505.3(b) to encourage lead and cooperating agencies to incorporate, where E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49954 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules appropriate, mitigation measures addressing a proposed action’s significant adverse human health and environmental effects that disproportionately and adversely affect communities with environmental justice concerns. This addition would highlight the importance of considering environmental justice and addressing disproportionate effects through the NEPA process and the associated decision. CEQ proposes this addition based on public and agency feedback received during development of this proposed rule requesting that the regulations address mitigation of disproportionate effects. Additionally, this proposed change would encourage agencies to incorporate mitigation measures to address disproportionate burdens on communities with environmental justice concerns. CEQ proposes to strike the text in paragraph (c) regarding mitigation and strike existing 40 CFR 1505.3(d) regarding publication of monitoring, replacing them with the new language in § 1505.3(c) regarding the contents of a monitoring and compliance plan. A revised paragraph (c) would require agencies to prepare a monitoring and compliance plan when the agency relies on and commits to mitigation in a ROD, FONSI, or separate document, which could be issued after the decision. This provision would require a plan for any mitigation relied upon and adopted as the basis for analyzing the reasonably foreseeable effects of a proposed action, not just mitigation to address significant effects. CEQ views this plan as necessary for an agency to conclude that it is reasonably foreseeable that a mitigation measure will be implemented. Further, the plan is necessary for the agency to conclude that the effects of the action without the mitigation measure are not reasonably foreseeable and, therefore, do not need to be analyzed and disclosed. CEQ does not propose to require a monitoring and compliance plan where an agency analyzes and discloses the effects of the action without the mitigation measure. In that circumstance, the agency would not rely on the mitigation measure as the basis for identifying reasonably foreseeable effects. New paragraphs (c)(1) and (c)(1)(i) through (c)(1)(vi) would describe the contents of a monitoring and compliance plan and provide agencies flexibility to tailor plans to the complexity of the mitigation that the agency has incorporated into a ROD, FONSI, or other documents. Contents would include a description of the mitigation measures; the parties responsible for monitoring and VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 implementation; how the information will be made publicly available, as appropriate; the timeframe for the mitigation; the standards for compliance; and how the mitigation will be funded. Agencies may tailor monitoring and compliance plans to the particular action, but they should contain sufficient detail to inform the participating and cooperating agencies and the public about relevant considerations, such as the magnitude of the environmental effects that would be subject to mitigation, the degree to which the mitigation represents an innovative approach, the degree of uncertainty about the efficacy of the mitigation, and other relevant facts that support a determination that the mitigation will be effective. Where a proposed action involves more than one agency, the lead and cooperating agencies should collaboratively develop a monitoring and compliance plan that clearly defines agency roles and avoids duplication of effort. Requiring agencies to prepare a monitoring and compliance plan for mitigation relied upon in a decision is intended to address concerns that mitigation measures included in agency decisions are not always carried out or monitored for effectiveness. If it is reasonably foreseeable that a mitigation measure will not be effective, then the agency could not appropriately rely on the mitigation measure in determining that an effect is not significant. A monitoring and compliance plan would address this concern and support an agency relying on mitigation for purposes of accurately assessing the environmental effects of a proposed action, and, in some circumstances, concluding that a FONSI is appropriate. A new paragraph (c)(2) would state that any new information developed through the monitoring and compliance plan would not require an agency to supplement their environmental documents solely because of this new information. This provision is intended to clarify that the existence of a monitoring and compliance plan by itself would not mean that the action to which it relates is an ongoing action if it would otherwise be considered completed; however, if an action remains to occur notwithstanding the monitoring and compliance plan, the agency may need to supplement its analysis in light of new information if the criteria for supplementation in § 1502.9(d) are met. The proposed changes to § 1505.3 would be consistent with proposed revisions to 40 CFR 1505.2(c), which direct agencies to adopt and summarize a monitoring and enforcement program PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 for any enforceable mitigation requirements or commitments for a ROD, and changes to § 1501.6(a) to clarify the use of mitigated FONSIs. The changes also would provide more consistency in the content of monitoring and compliance plans, increase transparency in the disclosure of mitigation measures, and provide the public and decision makers with relevant information about mitigation measures and the process to comply with them. H. Proposed Revisions to Other Requirements of NEPA (Part 1506) CEQ proposes multiple revisions to part 1506, as described in this section. As noted in section II.C.7, CEQ proposes to move 40 CFR 1506.6, ‘‘Public involvement,’’ to proposed § 1501.9, ‘‘Public and governmental engagement.’’ CEQ is not proposing changes to § 1506.2, Elimination of duplication with State, Tribal, and local procedures; § 1506.4, Combining documents; or § 1506.8, Proposals for legislation. CEQ invites comment on whether it should make changes to these sections or other changes to part 1506. 1. Limitations on Actions During NEPA Process (§ 1506.1) CEQ proposes to edit § 1506.1(b) to provide further clarity on the limitations on actions during the NEPA process to ensure that agencies and applicants do not take actions that will adversely affect the environment or limit the choice of reasonable alternatives until an agency concludes the NEPA process. CEQ is proposing to amend the last sentence in paragraph (b), which provides that agencies may authorize certain activities by applicants for Federal funding while the NEPA process is ongoing. To better align this provision with NEPA’s requirements, CEQ proposes to add a clause to the sentence clarifying that such activities cannot limit the choice of reasonable alternatives, and the Federal agency must notify the applicant that the agency retains discretion to select any reasonable alternative or the no action alternative regardless of any potential prior activity taken by the applicant prior to the conclusion of the NEPA process. This proposal would provide additional clarity consistent with 40 CFR 1506.1(a) and the 2020 Response to Comments, which state that this provision allows certain activities to proceed, prior to a ROD or FONSI, so long as they do not have an adverse environmental impact or limit the E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 choice of reasonable alternatives.86 It also is responsive to comments received on the 2020 rule expressing concern that the proposed language could allow predecisional activities to proceed that would inappropriately narrow the range of alternatives considered by an agency. To address this concern, these commenters requested that the CEQ clarify in the regulations that these predecisional activities cannot limit the range of alternatives an agency considers under NEPA.87 CEQ’s proposed amendments to this paragraph would provide clarity on this issue within the regulatory text. CEQ also proposes to strike ‘‘required’’ in paragraph (c). This edit is consistent with § 1506.11, which encourages, but does not require, the use of programmatic environmental reviews. 2. Adoption (§ 1506.3) The CEQ regulations have always allowed agencies to adopt all or part of an EIS. The 2020 regulations expanded the adoption provisions to codify longstanding agency practice of adopting EAs and explicitly allowed for adoption of other agencies’ prior CE determinations. CEQ has heard from multiple stakeholders, including clean energy and other stakeholders, that CEQ should retain these provisions because they create efficiencies in the NEPA process. Conversely, other stakeholders, including environmental organizations, have raised concerns about potential abuse of the adoption process, especially for CE determinations. CEQ proposes changes to this provision to facilitate use of these efficiency mechanisms in an appropriate and transparent manner. CEQ proposes modifications to § 1506.3 to improve clarity, reduce redundancy, and ensure that when a Federal agency adopts an EIS, EA, or CE determination, the agency conducts an independent review to determine that the EIS, EA, or CE determination meets certain basic standards. CEQ also proposes to add new requirements regarding the adoption of another agency’s CE determination to increase public transparency. In paragraph (a), CEQ proposes to strike the language requiring an EIS, EA, or CE determination to meet relevant standards and instead capture the standards in paragraphs (b) through (d) addressing adoption of EISs, EAs, and CE determinations, respectively. CEQ proposes to replace this clause with a 86 2020 Response to Comments, supra note 63, at 356. 87 Id. at 355. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 statement that requires adoption to be done ‘‘consistent with this section.’’ CEQ proposes to remove ‘‘Federal’’ as unnecessary and to make clear that agencies can adopt NEPA documents prepared by non-Federal entities that are doing so pursuant to delegated authority from a Federal agency. See, e.g., 23 U.S.C. 327. Accordingly, in paragraph (b), CEQ proposes to add introductory text clarifying the standard for adopting an EIS. The language would provide that an agency may adopt a draft or final EIS, or a portion of a draft or final EIS, if the adopting agency independently reviews the statement and concludes it meets the standards for an adequate statement pursuant to the CEQ regulations and the agency’s NEPA procedures. In paragraph (b)(1), which addresses adoption of an EIS for actions that are substantially the same, CEQ proposes to insert ‘‘and file’’ after ‘‘republish’’ to improve consistency with § 1506.9 and because agencies must both publish the EIS and file it with EPA. Further in paragraph (b)(1), CEQ proposes to add text to clarify that agencies should supplement or reevaluate an EIS if the agency determines that the EIS requires additional analysis. For example, this may be necessary if an agency is adopting an EIS for an action that was evaluated 5 years earlier, and there is more recent data or updated information available on one of the categories of effects. In such instances, the agency would adopt the EIS, prepare a supplemental analysis reevaluating the particular category of effects for which updated information is available, and issue both for public comment. Similarly, if an action is not substantially the same and the adopting agency determines that the EIS requires supplemental analysis, the agency would treat the EIS as a draft, prepare the additional analysis, and publish the new draft EIS for notice and comment. Where a proposed action is not substantially the same, an agency must, at minimum, supplement the adopted EIS to ensure it covers its proposed action. Additionally, in paragraph (b)(2), which addresses adoption of an EIS by a cooperating agency, CEQ proposes to clarify that this provision is triggered when a cooperating agency does not issue a joint or concurrent ROD consistent with § 1505.2. For example, this provision covers instances when a cooperating agency adopts an EIS for an action the cooperating agency did not anticipate at the time the EIS was issued, such as a funding action for a project that was not contemplated at the time of the EIS. In such instances, the PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 49955 cooperating agency may issue a ROD adopting the EIS of the lead agency without republication. CEQ proposes to strike the text at the end of paragraph (b)(2) regarding independent review because that standard would be captured in paragraph (b). In paragraph (c), CEQ proposes to add introductory language to clarify the standard for adopting an EA, which mirrors the standard for adoption of an EIS. CEQ similarly proposes edits to align the process with EISs by clarifying that the adopting agency may adopt the EA, and supplement or reevaluate it as necessary, in its FONSI. For additional clarity, CEQ proposes to add ‘‘determinations’’ to the title of paragraph (d). CEQ also proposes to revise this paragraph to improve readability and clarify that the adopting agency is adopting another agency’s already made determination that a CE applies to a particular proposed action where the adopting agency’s proposed action is substantially the same. This provision does not allow an agency to unilaterally use another agency’s CE for an independent proposed action; rather, that process is addressed in § 1501.4(e). To ensure that there is public transparency for adoption of CE determinations, like adoption of EAs and EISs, CEQ proposes to require agencies to document and publish their adoption of CE determinations, such as on their website. Proposed changes to paragraph (d)(1) would specify that agencies must document a determination that the proposed action is substantially the same as the action covered by the original CE determination, and there are no extraordinary circumstances present requiring preparation of an EA or EIS. Because agencies typically already make such determinations in the course of adopting CE determinations for actions that are substantially the same, CEQ does not view this documentation requirement as onerous or time consuming. Finally, CEQ proposes to add paragraph (d)(2) requiring agencies to publicly disclose when they are adopting a CE determination. This proposed change is intended to increase transparency on use of CEs in response to feedback from stakeholders that they often do not know when an agency is proceeding with a CE. This adds a standard to adoption of CE determinations that is similar to the practice for adoption of EAs and EISs. Agencies, however, would have flexibility to determine how to make this information publicly available, including through posting on an agency’s website. E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49956 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules 3. Agency Responsibility for Environmental Documents (§ 1506.5) CEQ proposes modification and additions to § 1506.5 to clarify the requirements related to a Federal agency’s role in preparing environmental documents and for consistency with section 107(f) of NEPA, which requires agencies to prescribe procedures to allow project sponsors to prepare EAs and EISs under the agencies’ supervision and to independently evaluate and take responsibility for such documents. The 2020 rule amended this provision to allow an applicant to prepare EISs on behalf of the agency; however, the 2023 amendments to NEPA make clear that agencies must establish procedures for project sponsors to prepare environmental documents, not the CEQ regulations. CEQ understands the 2023 amendments to NEPA to use the terms applicant and project sponsor interchangeably and, therefore, CEQ proposes to remove references to applicants from this section other than to cross-reference the requirement that agencies establish procedures in their agency NEPA procedures for project sponsors to prepare environmental documents. See section II.I.2. However, CEQ notes that applicants and project sponsors may still provide information to agencies so that they or their contractors may prepare environmental documents consistent with § 1506.5(b). In paragraph (a), CEQ proposes to clarify that, regardless of who prepares an environmental document, the agency must ensure they are prepared with professional and scientific integrity using reliable data and resources, consistent with sections 102(2)(D) and (2)(E) of NEPA, and exercise its independent judgment to review, take responsibility for, and briefly document its determination that the document meets all necessary requirements and standards related to NEPA, the CEQ regulations, and the agency’s NEPA procedures. Agencies do not need to document this determination separately and, for example, could include a certification statement in the environmental document. Paragraph (b) would provide that agencies can authorize a contractor to draft a FONSI or ROD, but the agency is responsible for its accuracy, scope, and contents. Because a FONSI or ROD represents an agency’s conclusions regarding potential environmental impacts and other aspects of a proposed action, CEQ proposes these changes to exclude applicants from directly preparing these documents and to clarify the role of contractors. A lead VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 agency must prescribe procedures to allow a project sponsor to prepare an environmental assessment or an environmental impact statement, consistent with section 107(f) of NEPA, and CEQ proposes to require agencies to include these procedures as part of their agency NEPA procedures in § 1507.3(c)(12). Finalizing and verifying the contents of these decision documents is appropriately the responsibility of the Federal agency and is consistent with longstanding agency practice. CEQ proposes to revise paragraph (b)(4) to clarify that the Federal agency is responsible for preparing a disclosure statement for the contractor to execute, specifying that the contractor does not have any financial or other interest in the outcome of the proposed action. The proposed language is generally consistent with the approach in the 1978 regulations. Finally, CEQ proposes to remove the paragraph headings because they do not accurately or helpfully describe the contents of the paragraphs. 4. Further Guidance (§ 1506.7) CEQ proposes to simplify § 1506.7(a) by deleting references to Executive Orders that have been revoked. CEQ will continue to provide guidance concerning NEPA and its implementation on an as-needed basis. Any such guidance will be consistent with NEPA, the CEQ regulations, and any other applicable requirements. Future guidance could include updates to existing CEQ guidance 88 or new guidance. CEQ also proposes to update paragraph (b) to reflect the date upon which a final rule is effective. If there is a conflict between existing guidance and an issued final rule, the final rule would prevail after the date upon which it becomes effective. 5. Proposals for Regulations (40 CFR 1506.9) CEQ proposes to strike 40 CFR 1506.9, ‘‘Proposals for regulations.’’ The 2020 rule added this provision to allow agencies to substitute processes and documentation as part of the rulemaking process for corresponding requirements in these regulations.89 Since 1978, the CEQ regulations have encouraged agencies to combine environmental documents with any other agency document to reduce duplication and paperwork (40 CFR 1506.4), and agencies also may combine procedural steps, for example, to satisfy the public 88 See CEQ, CEQ Guidance Documents, https:// ceq.doe.gov/guidance/guidance.html. 89 2020 Final Rule, supra note 36, at 43338–39. PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 comment requirements of a rulemaking process and NEPA. See § 1507.3(c)(5). As such, CEQ expects that the provision at 40 CFR 1506.9 is unnecessary to achieve the desired effect of improved efficiency. Removing this section would avoid confusion and controversy over whether the procedures of a separate process meet the requirements of CEQ’s regulations. Further, courts have questioned whether separate regulatory processes can be a substitute for NEPA in some cases. See e.g., Sierra Club v. Fed. Energy Regul. Comm’n, 867 F.3d 1357, 1375 (D.C. Cir. 2017) (‘‘[T]he existence of permit requirements overseen by another [F]ederal agency or [S]tate permitting authority cannot substitute for a proper NEPA analysis.’’). Additionally, CEQ does not consider it appropriate to single out one particular type of action—rulemaking—for aligning or combining procedural steps. Indeed, one of the key objectives of agency NEPA procedures is to integrate the NEPA process into other agency processes. Therefore, CEQ suggests the more prudent approach is for agencies to combine NEPA reviews with other reviews for rulemaking, similar to longstanding agency practice to combine NEPA documents with other review processes, such as compliance with section 106 of the National Historic Preservation Act or section 7 of the Endangered Species Act, or set out processes in their NEPA procedures to comply concurrently with multiple legal requirements. 6. Filing Requirements (§ 1506.9) CEQ proposes to redesignate 40 CFR 1506.10 as § 1506.9, which would restore the same numbering for this and subsequent sections used in the 1978 regulations. CEQ proposes to replace the acronym for EPA with the full name ‘‘Environmental Protection Agency’’ here and in § 1506.10, consistent with the format in the rest of the CEQ regulations. CEQ also proposes to clarify that agencies must notify EPA when they adopt an EIS consistent with § 1506.3(b). CEQ proposes this change to codify common practice and guidance from EPA.90 EPA notification ensures initiation of the appropriate comment or review period. Such notification, even where a cooperating agency is adopting without public comment consistent 90 See EPA, Environmental Impact Statement Filing Guidance, https://www.epa.gov/nepa/ environmental-impact-statement-filing-guidance. EPA must be notified when a Federal agency adopts an EIS to commence the appropriate comment or review period. If a Federal agency chooses to adopt an EIS written by another agency, and it was not a cooperating agency in the preparation of the original EIS, the EIS must be republished and filed with EPA. E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 with § 1506.3(b)(1), improves transparency to the public regarding the status of an EIS and also helps track the status of EISs across the Federal Government. 7. Timing of Agency Action (§ 1506.10) To accommodate the change in numbering described in section II.H.6, CEQ proposes to renumber 40 CFR 1506.11 ‘‘Timing of agency action’’ to § 1506.10. CEQ proposes in paragraph (b) to change ‘‘may not’’ to ‘‘shall not’’ to eliminate a potential ambiguity. CEQ proposes changes to paragraph (c)(1) to update this provision to reflect current practices within Federal agencies. Specifically, CEQ proposes to change references to ‘‘appeal processes’’ to ‘‘administrative review processes’’ and add examples, which can include processes such as appeals, objections, and protests. CEQ further proposes updates to align the text to provide flexibility in timing to agencies that use these administrative review processes and clarify that such a process may be initiated either prior to or after the filing and publication of a final EIS with EPA depending on the specifics of the agency’s authorities. Depending on the agency involved and their associated authorities, administrative review processes generally allow other agencies or the public to raise issues about a decision and make their views known. CEQ proposes to clarify that the period for administrative review of the decision and the 30-day review period prescribed in paragraph (b)(2) for when a ROD can be issued may run concurrently. CEQ proposes these changes to reflect changes in Federal agency regulations and procedures since this text was promulgated in 1978 and to allow for greater efficiency. For example, the U.S. Department of Agriculture’s Forest Service has an objections process outlined at 36 CFR part 218 where the public can object to a draft decision; these regulations replaced the prior appeal process formerly used by the agency. To initiate the objections process, Forest Service regulations require that the final EIS and a draft ROD be made available to the public, but the Forest Service does not have to publish the final EIS with EPA until the conclusion of the objections process. See 36 CFR 218.7(b). The objections process can take 120 to 160 days, during which the agency makes the final EIS widely available to the public. Allowing the agency to file the final EIS with EPA and issue a ROD at the same time as the conclusion of the objections process rather than waiting an additional 30 days following the official filing will add efficiency to the VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 process. These proposed changes also would accommodate similar administrative review procedures. See e.g., 43 CFR 1610.5–2 (outlining the Bureau of Land Management (BLM) protest procedures). CEQ also proposes minor edits in paragraphs (d) and (e) for clarity and readability. 8. Emergencies (§ 1506.11) Consistent with changes in the preceding sections, CEQ proposes to renumber 40 CFR 1506.12 ‘‘Emergencies’’ to § 1506.11. CEQ proposes to strike the last sentence stating other actions remain subject to NEPA review. This erroneously implies that actions covered by § 1506.11 are not subject to NEPA review. Instead, CEQ proposes to replace the sentence with language clarifying that alternative arrangements are not a waiver of NEPA; rather, they establish an alternative means for NEPA compliance. This longstanding provision on emergencies has generated some confusion 91 as to whether, during emergencies, agency actions are exempted from NEPA review. CEQ proposes these changes to clarify that the regulations do not create a NEPA exemption; rather, they provide a pathway for compliance with NEPA where the exigencies of emergency situations do not provide sufficient time for an agency to complete an EIS for an action with significant environmental effects. As has been the long-standing practice, agencies may continue to determine how to proceed with actions to respond to emergencies that do not have significant environmental effects and that would ordinarily be analyzed through an EA. As discussed in section II.I.2, some agencies include procedures for addressing such situations in their agency NEPA procedures. CEQ does not have the authority to exempt agency actions from NEPA, regardless of whether an emergency exists. The proposed changes to § 1506.11 clarify that CEQ does not offer ‘‘alternative arrangements’’ to circumvent appropriate NEPA analysis but rather allows Federal agencies to establish alternative means for NEPA compliance to ensure that agencies can act swiftly to address emergencies while also meeting their statutory obligations under NEPA. CEQ’s proposal would clarify that when emergencies arise, § 1506.11 allows agencies to adjust the means by which they achieve NEPA compliance. This approach is also consistent with CEQ’s guidance on 91 2020 Response to Comments, supra note 63, at 417–19. PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 49957 NEPA and emergencies, updated in 2020.92 9. Innovative Approaches to NEPA Reviews (§ 1506.12) CEQ proposes to add a new section to the regulations in § 1506.12 to allow CEQ to grant a request for modification to authorize Federal agencies to pursue innovative approaches to comply with NEPA and the regulations in order to address extreme environmental challenges. CEQ’s intent is for this section to maximize agency flexibility, creativity, and efficiency while still meeting the requirements of NEPA and providing for sound environmental review. This is a new concept, distinct from the emergency provisions in § 1506.11, and different considerations apply for determining the existence of an extreme environmental challenge sufficient to trigger the proposed § 1506.12 than those for determining the existence of an emergency requiring alternative arrangements pursuant to § 1506.11. For example, an extreme environmental challenge might have a longer time horizon than is typical for an emergency action. As another example, it might be appropriate for an agency to determine that a forest ecosystem presenting a high risk of severe wildfire that could threaten water supplies presents extreme environmental challenges, even though restoration activities would take many years to complete. The intent of this approach is to allow for agencies to take innovative approaches when exploring how to address extreme environmental challenges, which could include, for instance, sea level rise or increased wildfire risk, or bolstering the resilience of infrastructure to increased disaster risk from the effects of climate change; water scarcity; degraded water or air quality; species loss; disproportionate and adverse effects on communities with environmental justice concerns; imminent or reasonably foreseeable loss of historic, cultural, or Tribal resources; and impaired ecosystem health. Paragraph (a) would provide that the purpose of this section is to allow agencies to comply with NEPA using procedures modified from the requirements of these regulations to address extreme environmental challenges. Paragraph (b) would require CEQ approval for any innovative approaches and make clear that approval does not waive the requirement to comply with 92 CEQ, Emergencies and the National Environmental Policy Act Guidance (Sept. 14, 2020), https://ceq.doe.gov/docs/nepa-practice/ emergencies-and-nepa-guidance-2020.pdf. E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49958 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules the statute. Rather, this section establishes an alternative means for NEPA compliance to address extreme environmental challenges. Paragraph (c) would outline what an agency must include in its request for approval of an innovative approach. Agencies would have to identify each provision of the regulations for which they are requesting modification and explain how the innovative approach they propose to ensure NEPA compliance. Agencies also must explain the extreme environmental challenge they are trying to address, why the alternative means are needed to address the challenge, and how the innovative approach would facilitate sound and efficient environmental review. Finally, agencies would need to consult with any potential cooperating agencies and include a summary of their comments with the request. Paragraph (d) would provide CEQ’s process for reviewing and approving such requests. Under this provision, CEQ would evaluate requests within 60 days and may choose whether to approve the approach, approve it with revision, or deny the request. Further, as is stipulated in paragraph (e), CEQ would post on its website all modification requests it has approved or denied. Examples of innovative approaches that could be the basis for a request include new ways to use information technology; cooperative agreements or work with local communities; methods more fully incorporating, while protecting, Indigenous Knowledge; new ways to work with project proponents and communities to advance proposals; and innovative tools for engaging the public and providing public comment opportunities, which could enhance participation from communities with environmental justice concerns. CEQ acknowledges that the proposed regulations would not include explicit limits in any of these areas. The intent of proposed § 1506.12 is to help ensure that the regulations have the maximum ability to accommodate ideas not yet put forward to improve NEPA implementation. The proposed regulation would encourage innovation where needed to address extreme environmental challenges, consistent with the purposes and policies expressed in the NEPA statute including to ‘‘promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [humans],’’ 42 U.S.C. 4321, and ‘‘attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 unintended consequences,’’ 42 U.S.C. 4331(b)(3). CEQ invites public comment on this proposed provision to determine if it is necessary. Specifically, CEQ would like input on whether such a provision is needed to address extreme environmental challenges and what Federal agencies would be able to carry out under this proposed provision that they cannot currently accomplish in the current regulations. CEQ also invites public comment on whether CEQ should add additional procedures or limitations to ensure that innovative approaches are used appropriately. 10. Effective Date (§ 1506.13) CEQ proposes to remove the 2020 effective date and replace it with the date upon which a final rule is effective. CEQ notes that Federal agencies would not need to redo or supplement a completed NEPA review (e.g., where a CE determination, FONSI, or ROD has been issued) as a result of the issuance of this rulemaking. I. Proposed Revisions to Agency Compliance (Part 1507) CEQ proposes substantive revisions to all sections in part 1507. CEQ invites comment on whether it should make other changes to this section. 1. Compliance (§ 1507.1) CEQ proposes to add a second sentence to § 1507.1, restoring language from the 1978 regulations, to state that agencies have flexibility to adapt their implementing procedures to the requirements of other applicable laws. Restoring this language is consistent with the changes CEQ made to 40 CFR 1507.3 in its Phase 1 rulemaking to restore the agency discretion to tailor their NEPA procedures to their unique missions and contexts, creating opportunity for agencies to innovate and improve efficiency. 2. Agency Capability To Comply (§ 1507.2) CEQ proposes edits to § 1507.2 to emphasize agencies’ responsibilities under NEPA, including to incorporate the requirements added to section 102(2) of NEPA by the FRA, and require agencies to designate a Chief Public Engagement Officer. First, CEQ proposes to move the first sentence of 40 CFR 1507.2(a) to a new § 1507.2(b) and require agencies to identify a Chief Public Engagement Officer who would be responsible for facilitating community engagement across the agency and, where appropriate, the provision of technical assistance to communities. Next, CEQ proposes to redesignate 40 CFR 1507.2(b) and (c) as PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 § 1507.2(c) and (d), respectively. Then, CEQ proposes to redesignate the existing 40 CFR 1507.2(d) through (f) as § 1507.2(h) through (j) and add a new paragraph (e) to require agencies to prepare environmental document with professional integrity consistent with section 102(2)(D) of NEPA. In a new paragraph (f), CEQ proposes to require agencies to make use of reliable data and resources, consistent with section 102(2)(E) of NEPA. And in a new paragraph (g), CEQ proposes to require agencies to study, develop, and describe technically and economically feasible alternatives, consistent with section 102(2)(F) of NEPA. Finally, in redesignated paragraph (j), CEQ proposes to delete the reference to E.O. 13807 because E.O. 13990 revoked E.O. 13807. 3. Agency NEPA Procedures (§ 1507.3) CEQ proposes several updates to § 1507.3 to reorganize paragraphs to improve readability, consolidate related provisions, restore text from the 1978 regulations, and codify CEQ guidance on CEs. In paragraphs (a) and (b), CEQ would update the effective date to reflect the effective date of a final rule. In paragraph (b), CEQ proposes to give agencies 12 months after the effective date to develop proposed procedures and initiate consultation with CEQ to implement the CEQ regulations. CEQ also proposes moving, with some modification, language from paragraph (c) to paragraph (b) for clarity and to improve organization since the language is generally applicable to all agency NEPA procedures. CEQ would clarify that proposed procedures should facilitate efficient decision making and ensure that agencies make decisions in accordance with the policies and requirements of NEPA. In paragraph (b)(2), CEQ proposes to change ‘‘adopting’’ to ‘‘issuing’’ to avoid confusion with adoption under § 1506.3. CEQ also proposes to restore text from the 1978 regulations requiring agencies to continue to review their policies and procedures and revise them as necessary to be in full compliance with NEPA. The 2020 rule deleted this language as redundant to language added to 40 CFR 1507.3(b) requiring agencies to update their procedures to implement the final rule.93 CEQ is proposing to restore this language because CEQ views the requirement for an agency to continue to review their policies and procedures as different than the requirement in paragraph (b) to initially update procedures consistent with a final rule. 93 2020 E:\FR\FM\31JYP3.SGM Final Rule, supra note 36, at 43340. 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules Further, restoring this requirement is consistent with the proposal in paragraph (c)(9) for agencies to review CEs at least every 10 years. CEQ proposes a new paragraph (b)(3) to explicitly clarify that, consistent with longstanding practice, the issuance of new agency procedures or an update to existing agency procedures is not subject to NEPA review. To align with these changes with paragraph (b) and its paragraphs, CEQ proposes to strike the first clause in 40 CFR 1507.3(e) because it is unnecessary and could create confusion and move the other text in 40 CFR 1507.3(e) into § 1507.3(c) as discussed below. This provision does not provide any additional direction given the regulations’ longstanding existing requirements that agencies develop agency NEPA procedures, and CEQ determinations that they conform to the NEPA regulations. Further, its requirement that agency procedures ‘‘comply’’ with the CEQ regulations could be read to suggest that agencies must complete a NEPA review when establishing their procedures. Paragraphs (c) and (c)(1) through (c)(10) would list the items that all agency NEPA procedures must include. CEQ proposes minor revisions to paragraphs (c)(1) through (c)(4) to improve clarity and conciseness. CEQ proposes to modify paragraph (c)(3) to clarify that procedures should integrate environmental review into agency decision-making processes so decision makers can make use of them in making the decision. CEQ proposes to modify paragraph (c)(5) to emphasize that combining environmental documents should be done to facilitate sound and efficient decision making and avoid duplication. CEQ proposes to strike the language from this paragraph allowing agencies to designate and rely on other procedures or documents to satisfy NEPA compliance. As discussed further in sections II.C.1 and II.C.2, CEQ has concerns about this language added by the 2020 rule to substitute other reviews as functionally equivalent for NEPA compliance, and therefore proposes to remove it. To consolidate into one paragraph the required aspects of agency NEPA procedures, CEQ proposes to move 40 CFR 1507.3(e)(1), (e)(2), (e)(2)(i), and (e)(2)(iii) to paragraphs (c)(6), (c)(7), (c)(7)(i) and (c)(7)(ii), respectively, with minor wording modification for readability. CEQ proposes to move with modification 40 CFR 1507.3(e)(2)(ii), requiring agencies to establish CEs and identify extraordinary circumstances to paragraph (c)(8). CEQ proposes in paragraphs (c)(8)(i) through (c)(8)(iii) to include more specificity about the VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 process for establishing new or revising existing CEs consistent with CEQ’s 2010 CE guidance and agency practice. Paragraph (c)(8)(i) would include the existing requirement from 40 CFR 1507.3(e)(2)(i) that agencies identify when documentation is required for a determination that a CE applies to a proposed action. Paragraph (c)(8)(ii) would require agencies to substantiate new or revised CEs and make the documentation publicly available. This is consistent with the 2010 guidance and CEQ’s longstanding practice requiring agencies to demonstrate that agency activities are eligible for CEs.94 CEQ proposes to add paragraph (c)(8)(iii) to require agencies to describe how agencies will consider extraordinary circumstances; this requirement is currently addressed in existing 40 CFR 1507.3(c)(2)(ii). CEQ proposes to add paragraph (c)(9) to require agencies to include in their NEPA procedures a process for reviewing their CEs every 10 years. This would codify recommendations in CEQ’s guidance on establishing CEs,95 which encourages agencies to review CEs periodically. While the guidance recommends every 7 years,96 CEQ is proposing for review to occur at least every 10 years. In CEQ’s experience, it can take an agency a year or more to conduct such a review and revision given the steps involved, including conducting the review, developing a proposal to update procedures to reflect the review, consulting with CEQ, soliciting public comment, developing final procedures, and receiving a CEQ conformity determination. Federal agencies should review their CEs for multiple reasons, including to determine if CEs remain useful, whether they should modify them, and to determine if circumstances have changed resulting in an existing category raising the potential for significant effects. CEQ proposes to move 40 CFR 1507.3(e)(3) to paragraph (c)(10) without substantive change. Finally, CEQ proposes to move the requirement for agencies to explain in their NEPA procedures where interested persons can get information on EISs and the NEPA process from 40 CFR 1506.6(e) to § 1507.3(c)(11) and add a reference to EAs as well. CEQ proposes to codify section 107(f) of NEPA in a new paragraph (c)(12) requiring agencies to include procedures, where applicable, to allow a project sponsor to prepare EAs and PO 00000 94 CE Guidance, supra note 9. 95 Id. 96 Id. EISs consistent with § 1506.5. Since not all agency actions involve project sponsors, CEQ proposes to include ‘‘where applicable’’ to qualify this requirement. CEQ includes ‘‘consistent with § 1506.5’’ so that such procedures would ensure environmental documents prepared by project sponsors (or a contractor on the project sponsor’s behalf) are prepared with professional and scientific integrity, and ensure that the agency independently evaluates and takes responsibility for the contents of such documents. It also would ensure agencies require project sponsors to execute a disclosure statement to address financial or other interests. In addition to procedures, agencies may provide project sponsors with guidance and assist in the preparation of the documents consistent with § 1506.5(b)(1). CEQ invites comment on whether it should include additional provisions that agencies should consider or address in establishing such procedures. CEQ proposes to delete the provisions in 40 CFR 1507.3(d) and its paragraphs, which recommend agency procedures identify different classes of activities or decisions that may not be subject to NEPA. CEQ proposes to revise § 1507.3(d) to provide a list of items that agencies may include in their procedures, as appropriate, which would include, at paragraph (d)(1), identifying activities or decisions that are not subject to NEPA. Proposing to delete the specific categories of such activities or decisions is consistent with the proposed changes to § 1501.1. See section II.C.1 and II.C.2. Paragraph (d)(2) would allow agencies to include processes for emergency actions that would not result in significant environmental effects. This provision is similar to CEQ’s own emergency process for EISs provided in § 1506.11 but relates to activities that would not require preparation of an EIS. Some agencies have programs that focus on these types of emergency actions and may need to consider special arrangements for their environmental assessments in these circumstances. These special arrangements could focus on the format of the documents, special distribution and public involvement procedures, and timing considerations. Some agencies have already established such processes in their procedures to ensure efficient NEPA compliance in an emergency. See, e.g., 36 CFR 220.4(b); Dep’t of Homeland Sec., Instruction Manual #023–01–001–01, Section VI.97 97 https://www.dhs.gov/sites/default/files/ publications/DHS_Instruction%20Manual%20023- at 16. Frm 00037 49959 Continued Fmt 4701 Sfmt 4702 E:\FR\FM\31JYP3.SGM 31JYP3 49960 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 CEQ proposes to move, without modification, 40 CFR 1507.3(f)(1) and (f)(2) to paragraphs (d)(3) and (d)(4), respectively. CEQ proposes to remove 40 CFR 1507.3(f)(4) regarding combining the agency’s EA process with its scoping process as unnecessary. Section 1501.5(j) clarifies that agencies can employ scoping at their discretion when it will improve the efficiency and effectiveness of EAs, including combining scoping with a comment period on a draft EA. In addition, CEQ proposes to remove, as superfluous, the first sentence of 40 CFR 1507.3(f)(3) regarding lengthy periods between an agency’s decision to prepare an EIS and actual preparation, as the regulations do not prescribe specific timelines for preparation of environmental documents. As discussed in section II.D.3, CEQ proposes to move the second sentence of 40 CFR 1507.3(f)(3) regarding supplemental notices when an agency withdraws, cancels, or otherwise ceases the consideration of a proposed action before completing an EIS to § 1502.4(f) with modifications. Finally, as discussed in section II.C.3, CEQ is proposing to strike 40 CFR 1507.3(f)(5) and replace it with a provision in § 1501.4(e) that is consistent with the process established by section 109 of NEPA for adoption or use of another agency’s CE. 4. Agency NEPA Program Information (§ 1507.4) CEQ proposes revisions to § 1507.4, which describes the use of agency websites and other information technology to promote transparency and efficiency in the NEPA process. In paragraph (a), CEQ proposes revisions to remove ‘‘environmental’’ before ‘‘documents’’ because ‘‘environmental documents’’ is a defined term, and the intent of the sentence is to refer to NEPA-related information and documents more broadly; CEQ proposes the same edit in paragraph (a)(1). CEQ also proposes to require agencies to provide on their websites or other information technology tools (to account for new technologies) their agency NEPA procedures and a list of EAs and EISs that are in development and complete. CEQ proposes to revise paragraph (a)(2) to encourage agencies to post their environmental documents to their websites. CEQ proposes to encourage rather than simply allow agencies to include the information listed in paragraphs (a)(1) through (a)(4). Finally, CEQ proposes edits to paragraph (b), which promotes 01-001-01%20Rev%2001_ 508%20Admin%20Rev.pdf. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 interagency coordination of environmental program websites and shared databases, to provide agencies with additional flexibility and clarify that the section is not limited to the listed technology. J. Proposed Revisions to Definitions (Part 1508) Within part 1508, CEQ proposes revisions to the definitions of ‘‘cooperating agency,’’ ‘‘effects’’ or ‘‘impacts,’’ ‘‘environmental assessment,’’ ‘‘environmental document,’’ ‘‘environmental impact statement,’’ ‘‘finding of no significant impact,’’ ‘‘human environment,’’ ‘‘lead agency,’’ ‘‘major Federal action,’’ ‘‘mitigation,’’ ‘‘notice of intent,’’ ‘‘page,’’ ‘‘scope,’’ and ‘‘tiering.’’ CEQ proposes to add definitions for ‘‘environmental justice,’’ ‘‘environmentally preferable alternative,’’ ‘‘extraordinary circumstances,’’ ‘‘joint lead agency,’’ ‘‘participating Federal agency,’’ ‘‘programmatic environmental document,’’ and ‘‘significant effects.’’ CEQ does not propose substantive edits to any other definitions, but would redesignate the paragraphs to keep the list of terms in alphabetical order. CEQ invites comment on whether CEQ should modify other definitions or add new definitions. In particular, CEQ invites comment on whether it should define any additional terms used in NEPA, as amended by the FRA, including ‘‘applicant’’ or ‘‘project sponsor.’’ CEQ is not proposing to separately define the phrase ‘‘communities with environmental justice concerns,’’ but intends that phrase would mean communities that do not experience environmental justice as defined in § 1508.1(k). CEQ is particularly interested in comment on whether to provide a separate definition of ‘‘communities with environmental justice concerns,’’ and if so, how the regulations should define that term. 1. Cooperating Agency (§ 1508.1(e)) CEQ proposes to revise the definition of ‘‘cooperating agency’’ in § 1508.1(e) for clarity and consistency with the definition of ‘‘cooperating agency’’ in section 111(2) of NEPA defining this term to mean ‘‘any Federal, State, Tribal, or local agency with jurisdiction by law or special expertise that has been designated as a cooperating agency by the lead agency . . . .’’ 2. Effects or Impacts (§ 1508.1(g)) In § 1508.1(g), CEQ proposes to make clarifying edits and to add and modernize examples. Paragraph (g)(4) lists common types of effects that may arise during NEPA review. CEQ PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 proposes to update the list to add disproportionate and adverse effects to communities with environmental justice concerns and climate change-related effects. For climate change effects, CEQ proposes to clarify that this can include both the contributions to climate change from a proposed action and its alternatives as well as the potential effects of climate change on the proposed action and its alternatives. These changes would update the definition to include effects that have been an important part of NEPA analysis for more than a decade and will continue to be relevant, consistent with best available science and NEPA’s requirements. Also, CEQ proposes these changes in response to comments received during the Phase 1 rulemaking that the definition of ‘‘effects’’ or ‘‘impacts’’ should explicitly address environmental justice and climate change.98 3. Environmental Assessment (§ 1508.1(h)) CEQ proposes to update the definition of ‘‘environmental assessment’’ in § 1508.1(h) for consistency with sections 106(b)(2) and 111(4) of NEPA, 40 CFR 1501.5, and longstanding agency practice. CEQ proposes to strike ‘‘prepared by’’ and change it to ‘‘for which a Federal agency is responsible’’ for consistency with section 107(f) of NEPA and § 1506.5, which allow a contractor or project sponsor (following agency issuance of procedures) to prepare an EA but requires that the agency take responsibility for the accuracy of its contents irrespective of who prepares it. This change would be consistent with longstanding agency practice to allow applicants and contractors to prepare EAs, so long as the agency is ultimately responsible for the contents. To improve readability, CEQ proposes edits to add text from § 1501.5 clarifying that an agency prepares an EA when a proposed action is not likely to have a significant effect or the significance of the effects is unknown. CEQ also proposes to simplify language in the rest of the paragraph by deleting superfluous text. These proposed changes do not alter the intention that an EA is used to support an agency’s determination whether to prepare an EIS (part 1502) or issue a FONSI (§ 1501.6). 4. Environmental Document (§ 1508.1(i)) CEQ proposes to add ‘‘record of decision’’ to the definition of ‘‘environmental document’’ in 98 Phase 1 Response to Comments, supra note 48, at 87, 99. E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules § 1508.1(i) for clarity. CEQ also proposes to add a documented CE determination to the definition to reflect the longstanding agency practice of documenting some CE determinations. This change also is consistent with the change CEQ proposes to §§ 1501.4 and 1507.3 to add references to CE determinations. Therefore, for clarity and efficiency, CEQ is proposing to incorporate documented CE determinations into the definition of ‘‘environmental document.’’ CEQ notes that section 111(5) of NEPA defines ‘‘environmental document’’ more narrowly to only include EISs, EAs, and FONSIs. However, CEQ is proposing to retain and expand the regulatory definition since the term is used more broadly in the CEQ regulations. 5. Environmental Impact Statement (§ 1508.1(j)) CEQ proposes to change ‘‘as required’’ to ‘‘that is required’’ in the definition of EIS in § 1508.1(j) for consistency with the definition of ‘‘environmental impact statement’’ in section 111(6) of NEPA. ddrumheller on DSK120RN23PROD with PROPOSALS3 6. Environmental Justice (§ 1508.1(k)) CEQ proposes to add a new definition of ‘‘environmental justice’’ at § 1508.1(k). This definition would align with the definition set forth in section 2(b) of E.O. 14096.99 This provision would define ‘‘environmental justice’’ as the just treatment and meaningful involvement of all people so that they are fully protected from disproportionate and adverse human health and environmental effects and hazards, and have equitable access to a healthy, sustainable, and resilient environment. The proposed definition of environmental justice uses the phrase ‘‘cumulative impacts,’’ rather than the phrase ‘‘cumulative effects,’’ which are used elsewhere in the proposed regulations. That is because the phrase ‘‘cumulative impacts’’ has a meaning in the context of environmental justice relating to the aggregate effect of multiple stressors and exposures on a person, community, or population. See, e.g., Environmental Protection Agency, Cumulative Impacts Research: Recommendations for EPA’s Office of Research and Development (2022). CEQ views the evolving science on cumulative impacts as sufficiently distinct from the general meaning of cumulative effects under the NEPA regulations that using a different term could be helpful to agencies and the public. CEQ invites comment on this approach. 7. Environmentally Preferable Alternative (§ 1508.1(l)) particular actions and CEs consistent with § 1507.3. CEQ proposes to add a new definition of ‘‘environmentally preferable alternative’’ at § 1508.1(l). Since 1978, the CEQ regulations have required agencies to identify the environmentally preferable alternative or alternatives in the ROD (§ 1505.2(b)). While the regulations did not define the term, CEQ’s Forty Questions document provided an explanation, upon which CEQ has based the proposed definition.100 The environmentally preferable alternative is the alternative that will best promote the national environmental policy as expressed in section 101 of NEPA. 42 U.S.C. 4331. Application of the term ‘‘environmentally preferable alternative’’ is also described in § 1502.14(f) and discussed in section II.D.9. 9. Finding of No Significant Impact (§ 1508.1(o)) 8. Extraordinary Circumstances (§ 1508.1(m)) CEQ proposes to add a definition of ‘‘extraordinary circumstances’’ at § 1508.1(m). The 1978 regulations included the meaning of extraordinary circumstances in the definition of ‘‘categorical exclusion’’ at 40 CFR 1508.4 (2019), which the 2020 rule moved to 40 CFR 1501.4(b) (describing how to apply extraordinary circumstances when considering use of a CE) and 40 CFR 1507.3(e)(2)(ii) (requiring agencies to establish extraordinary circumstances for CEs in their procedures).101 CEQ proposes to create a standalone definition of ‘‘extraordinary circumstances’’ to improve clarity when this term is used throughout the rule. CEQ also proposes to add several examples of extraordinary circumstances to help agencies and the public understand common situations that agencies may consider in determining whether application of a CE is appropriate. The examples would include impacts on sensitive environmental resources, disproportionate and adverse effects on communities with environmental justice concerns, effects associated with climate change, and effects on historic properties or cultural resources. This list of examples would not be exclusive, and agencies would continue to have the discretion to identify extraordinary circumstances in their NEPA implementing procedures that are specific and appropriate to their 100 Forty 101 2020 99 E.O. 14096, supra note 20, at 25253. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 49961 Questions, supra note 4. Final Rule, supra note 36, at 43322, Frm 00039 10. Human Environment or Environment (§ 1508.1(p)) CEQ proposes to clarify that ‘‘human environment’’ and ‘‘environment’’ are synonymous in the regulations given that the latter is the more commonly used term. CEQ proposes a minor edit to ‘‘human environment’’ in § 1508.1(p) to remove ‘‘of Americans’’ after ‘‘present and future generations.’’ This minor edit improves consistency with NEPA in section 101(a), which speaks more generally about the impact of people’s ‘‘activity on the interrelations of all components of the natural environment’’ and the need ‘‘to create and maintain conditions under which [humans] and nature can exist in productive harmony.’’ 42 U.S.C. 4331(a). In the 2020 rule, CEQ changed ‘‘people’’ to ‘‘of Americans,’’ explaining that it was done to be consistent with section 101(a) of NEPA.102 However, CEQ now considers this explanation to overlook the context in which the phrase ‘‘present and future generations of Americans’’ is used in section 101(a). That paragraph of the Act refers to Americans at the end of the last sentence after using the broader term ‘‘man’’ three times. A reasonable interpretation is that human environment refers broadly to the interrelationship between people and the environment. The phrase ‘‘present and future generations of Americans’’ is used in a narrower context to ‘‘fulfill the social, economic, and other requirements of present and future generations of Americans.’’ 42 U.S.C. 4331(a). 11. Joint Lead Agency (§ 1508.1(q)) CEQ proposes to add a definition for ‘‘joint lead agency’’ consistent with the usage of that term in section 107(a)(1)(B) of NEPA and § 1501.7(b) and (c). 102 Id. 43342–43. PO 00000 In the definition of FONSI in § 1508.1(o), CEQ proposes to insert ‘‘agency’s determination that and’’ after ‘‘presenting the’’ for consistency with the definition of FONSI in section 111(7) of NEPA, which defines the term to mean ‘‘a determination by a Federal agency that a proposed agency action does not require the issuance of an environmental impact statement.’’ Fmt 4701 Sfmt 4702 E:\FR\FM\31JYP3.SGM at 43344–45. 31JYP3 49962 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules 12. Lead Agency (§ 1508.1(s)) CEQ proposes to revise the definition of ‘‘lead agency’’ for consistency with the definition of ‘‘lead agency’’ in section 111(9) of NEPA and to expand the definition of ‘‘lead agency’’ in § 1508.1(s) to also include EAs, consistent with longstanding practice. ddrumheller on DSK120RN23PROD with PROPOSALS3 13. Major Federal Action (§ 1508.1(u)) CEQ proposes to move the definition of ‘‘major Federal action’’ currently provided in 40 CFR 1508.1(q) to § 1508.1(u), revise it to clarify the list of example activities or decisions that meet the definition, and revise the list of exclusions from the definition consistent with section 111(10) of NEPA. CEQ notes that the determination of whether an activity or decision is a major Federal action is a fact-specific analysis that agencies have long engaged in to determine where they have substantial control and responsibility to consider environmental effects in their decision making. CEQ proposes to reorder and revise the definition to list the examples of activities or decisions that may be included in the definition of ‘‘major Federal action’’ in paragraph (u)(1), redesignating current 40 CFR 1508.1(q)(3)(i) through (q)(3)(iv) as paragraphs (u)(1)(ii) through (u)(1)(v). To paragraph (u)(1), CEQ proposes to revise the current example in 40 CFR 1508.1(q)(2) in paragraph (u)(1)(i) and add one example of potential major Federal actions. First, CEQ proposes to strike 40 CFR 1508.1(q)(2) and replace it with paragraph (u)(1)(i) to include the granting of authorizations such as permits, licenses, and rights-of way. CEQ proposes to strike the existing examples since regulated activities would be addressed in this revised example, and the others are redundant to the other examples listed in paragraphs (u)(1)(ii) through (u)(1)(vi). Second, CEQ proposes to revise the phrase ‘‘connected agency decisions’’ to ‘‘related agency decisions’’ in paragraph (u)(1)(iv) to clarify that the concept in this paragraph is not meant to refer to ‘‘connected actions’’ as defined in § 1501.3. CEQ considers this a nonsubstantive, clarifying change to avoid any confusion with connected actions. Third, CEQ proposes to revise paragraph (u)(1)(v) to change ‘‘approval of’’ to ‘‘carrying out’’ specific projects to address projects carried out directly by a Federal agency. CEQ proposes to strike ‘‘located in a defined geographic area’’ from the example of management activities; while this is merely an example, CEQ is concerned it could be VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 read as limiting. CEQ also proposes to strike the sentence regarding permits and regulatory decisions as this would be addressed by the example in paragraph (u)(1)(i). Fourth, CEQ proposes to add a new example at § 1508.1(u)(1)(vi) to explain when Federal financial assistance is a major Federal action. Generally, Federal financial assistance, other than minimal Federal funding, is a major Federal action where the Federal agency has authority and discretion over the financial assistance in a manner that could address environmental effects from the activities receiving the financial assistance. In such circumstances, the agency has sufficient control and responsibility over the use of the funds or the effects of the action for the decision to provide financial assistance to constitute a major Federal action consistent with the definition in section 111(10) of NEPA. This includes circumstances where the agency could deny the financial assistance, in whole or in part, due to environmental effects from the activity receiving the financial assistance, or could impose conditions on the financial assistance that could address the effects of such activity. To improve clarity and ensure appropriate application of NEPA, CEQ proposes this example of what a major Federal action may include. CEQ considers that, other than for minimal Federal Funding, where an agency has substantial control and responsibility over a recipient’s environmental effects or sufficient discretion to consider the environmental effects when making decisions, the appropriate approach is for agencies to identify the corresponding scope of analysis rather than excluding an activity or decision from NEPA review altogether. For example, if a Federal agency operates a loan guarantee program, the agency may have discretion in the types of activities to which it might issue a loan guarantee. A NEPA review that analyzes the environmental effects of potential project types could help inform how the agency designs the program. Depending on the terms of the loan guarantee program, the agency may have substantial control and responsibility over the use of the funds such that an environmental analysis can inform the decision making. As noted in section II.C.2 and earlier in this section, this is a fact-specific analysis agencies undertake based on the specifics of their authority for a particular action. In § 1508.1(u)(2), CEQ proposes to replace the exclusions currently in 40 CFR 1508.1(q)(1)(i) through (vi) with the exclusions from the definition of major Federal action codified in the definition PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 in section 111(10)(B) of NEPA. Paragraph (u)(2)(i)(A) and (B) would include the exclusion of non-Federal actions with no or minimal funding; or with no or minimal Federal involvement where the agency cannot control the outcome of the project consistent with section 111(10)(B)(i) of NEPA. These exclusions would replace the current exclusion in 40 CFR 1508.1(q)(1)(vi), which CEQ proposes to strike. CEQ invites comment on whether it should add additional provisions to the regulations to implement the ‘‘minimal Federal funding’’ exclusion in § 1508.1(u)(2)(i)(A). Agencies currently evaluate the provision of minimal Federal funding based on specific factual contexts. CEQ is interested in whether additional procedures, including thresholds for the amount or proportion of Federal funding necessary for an agency action to constitute major Federal action, could increase predictability while ensuring that Federal agencies do not overlook effects to vital components of the human environment, including the health of children and vulnerable populations, drinking water, communities with environmental justice concerns, and similar considerations. Paragraph (u)(2)(ii) would include the exclusion of funding assistance solely in the form of general revenue sharing funds consistent with section 111(10)(B)(ii) of NEPA. This exclusion would replace the current, similar exclusion in 40 CFR 1508.1(q)(1)(v), which CEQ proposes to strike. Paragraph (u)(2)(iii) would include the exclusion of loans, loan guarantees, or other forms of financial assistance where a Federal agency does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effects of the action, consistent with section 111(10)(B)(iii) of NEPA. Paragraph (u)(2)(iv) would include the exclusion of certain business loan guarantees provided by the Small Business Administration, consistent with section 111(10)(B)(iv) of NEPA. These exclusions would replace the current, similar exclusion in 40 CFR 1508.1(q)(1)(vii), which CEQ proposes to strike. In particular, CEQ proposes to strike the example currently in 40 CFR 1508.1(q)(1)(vii) for farm ownership and operating loan guarantees by the Farm Service Agency pursuant to 7 U.S.C. 1925 and 1941 through 1949. CEQ considers it best left to agencies to identify exclusions from the definition of major Federal action absent specific statutory authority like those for the Small Business Administration loan guarantees. E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules Next, CEQ proposes to move the existing exclusions, currently in 40 CFR 1508.1(q)(1)(iv), (q)(1)(i), and (q)(1)(ii) to paragraphs (u)(2)(v) through (u)(2)(vii), respectively. Section 111(10)(B)(v) through (vii) of NEPA codified these exclusions. Paragraph (u)(2)(v) would exclude bringing judicial or administrative civil or criminal enforcement actions. Paragraph (u)(2)(vi) would exclude extraterritorial activities or decisions.103 Paragraph (u)(2)(vii) would exclude activities or decisions that are non-discretionary. CEQ notes that there may be activities or decisions that are partially nondiscretionary. In such circumstances, an agency may conclude that the nondiscretionary components of an activity or decision are not major Federal actions and exclude the nondiscretionary components from analysis. In such circumstances, the agency would consider the discretionary components of the activity or decision. For example, if a statute mandated an agency to make an affirmative decision once a set of criteria are met, but the agency has flexibility in how to meet those criteria, the agency still has some discretion to consider alternatives and effects. Similarly, if a statute directs an agency to take an action, but the agency has discretion in how it takes that action, the agency can still comply with NEPA while carrying out its statutory mandate. CEQ proposes to move the exclusion regarding final agency actions from 40 CFR 1508.1(q)(1)(iii) to § 1508.1(u)(2)(viii) and make changes for consistency with section 106(a)(1). While section 106(a)(1) of NEPA includes this as a threshold factor for not requiring an EIS or EA, it is consistent with longstanding caselaw to exclude non-final agency actions from the definition of major Federal action. Therefore, CEQ proposes to include this as a threshold consideration as well as an exclusion from the definition of major Federal action. Finally, CEQ proposes a new exclusion in § 1508.1(u)(2)(ix) for activities or decisions for projects approved by a Tribal Nation that occur on or involve land held in trust or restricted status when the activities involve no Federal funding or other Federal involvement. Recognizing the unique circumstances facing Tribal Nations due to the United States holding land in trust for them or the 103 CEQ notes that the statutory exclusion of these activities from the definition of major Federal action and therefore NEPA review does not change the scope of environmental effects that agencies should assess for actions that are subject to NEPA review. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 Tribal Nation holding land in restricted status, CEQ proposes this exclusion to clarify that activities or decisions for projects approved by a Tribal Nation on trust lands are not major Federal actions where such activities do not involve Federal funding or other Federal involvement. Tribal leaders raised this issue during consultations that CEQ held on its NEPA regulations and voiced concerns that the NEPA process placed Tribal Nations in a disadvantageous position relative to State and local governments because of the United States’ ownership interest in Tribal lands. Categories of activities on trust lands that typically will not constitute major Federal actions include transfer of existing operation and maintenance activities of Federal facilities to Tribal groups, water user organizations, or other entities; human resources programs such as social services, education services, employment assistance, Tribal operations, law enforcement, and credit and financing activities not related to development; self-governance compacts for Bureau of Indian Affairs programs; service line agreements for an individual residence, building, or well from an existing facility where installation will involve no clearance of vegetation from the right-of-way other than for placement of poles, signs (including highway signs), or buried power/cable lines; and approvals of Tribal regulations or other documents promulgated in exercise of Tribal sovereignty, such as Tribal Energy Resource Agreements, certification of a Tribal Energy Development Organization, Helping Expedite and Advance Responsible Tribal Homeownership Act Tribal regulations, Indian Trust Asset Reform Act Tribal regulations and trust asset management plans, and Tribal liquor control ordinances. 14. Mitigation (§ 1508.1(w)) CEQ proposes three edits to the definition of ‘‘mitigation’’ in § 1508.1(w). First, CEQ proposes to change ‘‘nexus’’ to the more commonly used word ‘‘connection’’ to describe the relationship between a proposed action or alternatives and any associated environmental effects. Second, CEQ proposes to delete the sentence that NEPA ‘‘does not mandate the form or adoption of any mitigation’’ because this sentence is unnecessary and could mislead readers by not acknowledging that agencies may use other authorities to require mitigation or may incorporate mitigation in mitigated FONSIs (§ 1501.6) and RODs (§ 1505.2). Third, CEQ proposes to add the clause ‘‘in general order of priority’’ to the PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 49963 sentence, ‘‘Mitigation includes’’ which introduces the list of mitigation types. This change would clarify that the types of mitigation provided in paragraphs (u)(1) though (u)(5) are listed in general order of priority, consistent with the familiar ‘‘mitigation hierarchy.’’ 104 This list was prioritized in the 1978 regulations with avoidance coming before other types of mitigation and this proposed addition highlights that intent, which is consistent with longstanding agency practice.105 15. Notice of Intent (§ 1508.1(y)) CEQ proposes to modify the definition of notice of intent to include environmental assessments, as applicable. CEQ proposes this change for consistency with § 1501.5(j), which provides that agencies may issue an NOI for an EA where it is appropriate to improve efficiency and effectiveness, and § 1501.10(b)(3)(iii), which sets forth one of the three potential starting points from which deadlines are measured for environmental assessments consistent with section 107(g)(1)(B)(iii). 104 See e.g., U.S. Dep’t of the Interior, A Strategy for Improving the Mitigation Policies and Practices of the Department of the Interior 2–3 (Apr. 2014), https://www.doi.gov/sites/doi.gov/files/migrated/ news/upload/Mitigation-Report-to-the-Secretary_ FINAL_04_08_14.pdf (discussing the development of a ‘‘mitigation hierarchy’’—which starts with avoidance—in the implementation of NEPA and the Clean Water Act); Bureau of Land Mgmt., H–1794– 1, Mitigation Handbook (P) 2–1 (Sept. 22, 2021), https://www.blm.gov/sites/default/files/docs/202110/IM2021-046_att2.pdf (citing CEQ regulations and noting that the ‘‘five aspects of mitigation (avoid, minimize, rectify, reduce/eliminate, compensate) are referred to as the mitigation hierarchy because they are generally applied in a hierarchical manner’’); U.S. Env’t Prot. Agency & U.S. Dep’t of Def., Memorandums of Agreement (MOA); Clean Water Act Section 404(b)(1) Guidelines; Correction, 55 FR 9210, 9211 (Mar. 12, 1990) (noting that under section 404 of the Clean Water Act, the Army Corps of Engineers evaluates potential mitigation efforts sequentially, starting with avoidance, minimization, and then compensation). 105 See, e.g., 10 CFR 900.3 (defining a regional mitigation approach under NEPA as ‘‘an approach that applies the mitigation hierarchy (first seeking to avoid, then minimize impacts, then, when necessary, compensate for residual impacts)’’); Presidential Memorandum, Mitigating Impacts on Natural Resources From Development and Encouraging Related Private Investment, 80 FR 68743, 68745 (Nov. 6, 2015) (addressing five agencies and noting that, ‘‘[a]s a practical matter, [mitigation is] captured in the terms avoidance, minimization, and compensation. These three actions are generally applied sequentially . . . .’’); Fed. Highway Admin., NEPA and Transportation Decisionmaking: Questions and Answers Regarding the Consideration of Indirect and Cumulative Impacts in the NEPA Process Question 9, https:// www.environment.fhwa.dot.gov/nepa/ QAimpact.aspx (describing the importance of ‘‘sequencing,’’ which refers to the process of prioritizing avoidance and minimization of effects over replacement or compensation for NEPA mitigation efforts). E:\FR\FM\31JYP3.SGM 31JYP3 49964 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules 16. Page (§ 1508.1(z)) 20. Significant Effects (§ 1508.1(kk)) CEQ proposes to modify the definition of ‘‘page’’ consistent with section 107(e) of NEPA to exclude citations from the page limits for EISs and EAs. CEQ proposes to retain the exclusions for maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information from the definition of ‘‘page’’ to facilitate better NEPA documents. While agencies could move these visual representations of information to appendices, which could come at the end of an EIS or the end of EIS chapters, CEQ is concerned that this will make the documents less functional to decision makers and the public. Further, such graphical displays themselves could be considered appendices consistent with the ordinary definition of appendix—supplementary material usually attached at the end of a piece of writing.106 CEQ invites comment on its proposed definition of ‘‘page.’’ CEQ proposes to add a definition for ‘‘significant effects’’ to provide a definition for those effects that are of vital importance in the NEPA process in determining the appropriate level of review. The proposed definition would align with the restoration of the context and intensity factors for determining significance in § 1501.3(d). CEQ proposes to define ‘‘significant effects’’ as adverse effects identified by an agency as significant based on the criteria set forth in § 1501.3(d). This would clarify that beneficial effects are not significant effects as the phrase is used in NEPA and, therefore, do not require an agency to prepare an EIS. CEQ proposes this as an alternative approach to the proposal in § 1501.3(d)(2)(i) where an action ‘‘does not’’ require an EIS when it would result only in significant beneficial effects. If CEQ includes this definition in the final rule, this approach would mean that an agency would not need to prepare an EIS if a proposed action’s effects are exclusively beneficial. However, irrespective of the level of NEPA review, agencies would still need to analyze both adverse and beneficial effects in NEPA documents if they are reasonably foreseeable. CEQ invites comment on the definition, specifically on the inclusion of ‘‘adverse’’ in the definition, and comments on whether the approach in § 1501.3(d)(2)(i) or § 1508.1(kk) is preferred and the reasons why. Finally, CEQ invites the public to submit any examples of EAs or EISs where there were significant effects that were purely beneficial. 17. Participating Federal Agency (§ 1508.1(bb)) CEQ proposes to add a definition of ‘‘participating Federal agency’’ to § 1508.1(bb) and define it consistent with the definition of the same term in section 111(8) of NEPA. 18. Programmatic Environmental Document (§ 1508.1(cc)) CEQ proposes to add a definition of ‘‘programmatic environmental document’’ to § 1508.1(cc) and define it consistent with the definition of the same term in section 111(11) of NEPA. 21. Tiering (§ 1508.1(mm)) ddrumheller on DSK120RN23PROD with PROPOSALS3 19. Scope (§ 1508.1(ii)) CEQ proposes to revise the definition of tiering to cross reference the process as set forth in § 1501.11. CEQ is proposing this revision to avoid any potential inconsistencies between the definition and the provisions of § 1501.11. CEQ proposes to expand the definition of ‘‘scope’’ to include EAs and revise the definition to include both the range and breadth of the actions, alternatives, and effects to be considered in an EIS or EA, consistent with CEQ’s proposed relocation of the discussion of scope in § 1501.3(b). As discussed further in section II.C.2, agencies have long examined the scope of their actions to determine what alternatives and effects they must analyze. This is a factspecific analysis that agencies undertake informed by their statutory authority and control and responsibility over the activity. CEQ also proposes to strike the last sentence regarding tiering because it is not definitional language and is unnecessary because this concept is more fully addressed in § 1501.11. E.O. 12866 provides that the Office of Information and Regulatory Affairs will review all significant rules.107 E.O. 13563 reaffirms the principles of E.O. 12866, calling for improvements in the Federal Government’s regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools 106 Merriam-Webster, https://www.merriamwebster.com/dictionary/appendix. 107 Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 III. Rulemaking Analyses and Notices A. Executive Order 12866, Regulatory Planning and Review PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 for achieving regulatory objectives.108 This proposed rule is a significant regulatory action under section 3(f)(1) of E.O. 12866 that CEQ submitted to OMB for review. The proposed changes would improve the CEQ regulations to benefit agencies and the public. Furthermore, an effective NEPA process can save time and reduce overall project costs by providing a clear process for evaluating alternatives and effects, coordinating agencies and relevant stakeholders including the public, and identifying and avoiding problems— including potential significant effects— that may occur in later stages of project development.109 Additionally, if agencies choose to consider additional alternatives and conduct clearer or more robust analyses, such analyses should improve societal outcomes by improving agency decision making. Because individual cases will vary, the magnitude of potential costs and benefits resulting from these proposed changes are difficult to anticipate, but CEQ has prepared a qualitative analysis in the accompanying regulatory impact analysis. B. Regulatory Flexibility Act and Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et seq., and E.O. 13272, Proper Consideration of Small Entities in Agency Rulemaking,110 require agencies to assess the impacts of proposed and final rules on small entities. Under the RFA, small entities include small businesses, small organizations, and small governmental jurisdictions. An agency must prepare an Initial Regulatory Flexibility Analysis unless it determines and certifies that a proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The proposed rule would not directly regulate small entities. Rather, the proposed rule would apply to Federal agencies and set forth the process for their compliance with NEPA. Accordingly, CEQ hereby certifies that the proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. 108 E.O. 13563, Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011). 109 See generally Linda Luther, Cong. Rsch. Serv. R42479, The Role of the Environmental Review Process in Federally Funded Highway Projects: Background and Issues for Congress (2012), https:// crsreports.congress.gov/product/pdf/R/R42479. 110 67 FR 53461 (Aug. 16, 2002). E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules C. National Environmental Policy Act Under the CEQ regulations, major Federal actions may include regulations. When CEQ issued regulations in 1978, it prepared a ‘‘special environmental assessment’’ for illustrative purposes pursuant to E.O. 11991.111 The NPRM for the 1978 rule stated ‘‘the impacts of procedural regulations of this kind are not susceptible to detailed analysis beyond that set out in the assessment.’’ 112 Similarly, in 1986, while CEQ stated in the final rule that there were ‘‘substantial legal questions as to whether entities within the Executive Office of the President are required to prepare environmental assessments,’’ it also prepared a special EA.113 The special EA issued in 1986 supported a FONSI, and there was no finding made for the assessment of the 1978 final rule. CEQ also prepared a special EA and reached a FONSI for the Phase 1 rulemaking. CEQ continues to take the position that a NEPA analysis is not required for establishing or updating NEPA procedures. See Heartwood v. U.S. Forest Serv., 230 F.3d 947, 954–55 (7th Cir. 2000) (finding that neither NEPA or the CEQ regulations required the Forest Service to conduct an EA or an EIS prior to the promulgation of its procedures creating a CE). Nevertheless, based on past practice, CEQ has developed a special EA and has posted it in the docket. CEQ invites comments on the special EA. D. Executive Order 13132, Federalism ddrumheller on DSK120RN23PROD with PROPOSALS3 E.O. 13132 requires agencies to develop an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.114 Policies that have federalism implications include regulations that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.115 CEQ does not anticipate that this proposed rule has 111 National Environmental Policy Act— Regulations: Proposed Implementation of Procedural Provisions, 43 FR 25230, 25232 (June 9, 1978); see E.O. 11991, supra note 26. 112 National Environmental Policy Act— Regulations: Proposed Implementation of Procedural Provisions, supra note 111, at 25232. 113 National Environmental Policy Act Regulations; Incomplete or Unavailable Information, supra note 29, at 15619. 114 E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999). 115 Id. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 federalism implications because it applies to Federal agencies, not States. E. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments E.O. 13175 requires agencies to have a process to ensure meaningful and timely input by Tribal officials in the development of policies that have Tribal implications.116 Such policies include regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.117 CEQ has assessed the impact of this proposed rule on Indian Tribal governments and has determined preliminarily that the proposed rule does significantly or uniquely affect these communities and seeks comment on this preliminary determination. CEQ engaged in government-to-government consultation with federally recognized Tribes on the Phase 2 rulemaking. As required by E.O. 13175, CEQ held a Tribal consultation on this rulemaking on November 12, 2021, and will be holding additional consultations during the public comment period. F. Executive Order 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All E.O. 12898 requires agencies to make achieving environmental justice part of their missions by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on communities of color and low-income communities.118 E.O. 14096 charges agencies to make achieving environmental justice part of its mission consistent with statutory authority by identifying, analyzing, and addressing disproportionate and adverse human health and environmental effects and hazards of Federal activities, including those related to climate change and cumulative impacts of environmental and other burdens on communities with environmental justice concerns. CEQ has analyzed this proposed rule and preliminarily determined that it would not cause disproportionate and adverse human health or environmental PO 00000 116 E.O. 13175, supra note 53. 117 Id. 118 E.O. 12898, supra note 7. Frm 00043 Fmt 4701 Sfmt 4702 49965 effects on communities with environmental justice concerns. This rule would set forth implementing regulations for NEPA; it is in the agency implementation of NEPA when conducting reviews of proposed agency actions where consideration of environmental justice effects typically occurs. CEQ invites comment on this preliminary determination. G. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Agencies must prepare a Statement of Energy Effects for significant energy actions under E.O. 13211.119 CEQ has preliminarily determined that this rulemaking is not a ‘‘significant energy action’’ because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. H. Executive Order 12988, Civil Justice Reform Under section 3(a) of E.O. 12988, agencies must review their proposed regulations to eliminate drafting errors and ambiguities, draft them to minimize litigation, and provide a clear legal standard for affected conduct.120 Section 3(b) provides a list of specific issues for review to conduct the reviews required by section 3(a).121 CEQ has conducted this review and determined that this proposed rule complies with the requirements of E.O. 12988. I. Unfunded Mandate Reform Act Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531, requires Federal agencies to assess the effects of their regulatory actions on Tribal, State, and local governments, and the private sector to the extent that such regulations incorporate requirements specifically set forth in law. Before promulgating a rule that may result in the expenditure by a Tribal, State, or local government, in the aggregate, or by the private sector of $100 million, adjusted annually for inflation, in any 1 year, an agency must prepare a written statement that assesses the effects on Tribal, State, and local governments and the private sector. 2 U.S.C. 1532. This proposed rule would apply to Federal agencies and would not result in expenditures of $100 million or more for Tribal, State, and local governments, in the aggregate, or the private sector in any 1 year. This 119 E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001). 120 E.O. 12988, Civil Justice Reform, 61 FR 4729, 4731 (Feb. 7, 1996). 121 Id. E:\FR\FM\31JYP3.SGM 31JYP3 49966 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules proposed action also would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of 2 U.S.C. 1531– 1538. J. Paperwork Reduction Act This proposed rule would not impose any new information collection burden that would require additional review or approval by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List of Subjects in 40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508 Administrative practice and procedure; Environmental impact statements; Environmental protection; Natural resources. Brenda Mallory, Chair. For the reasons discussed in the preamble, the Council on Environmental Quality proposes to amend 40 CFR chapter V by revising subchapter A to read as follows: ■ 1. Revise subchapter A to read as follows: PART 1500—PURPOSE AND POLICY Sec. 1500.1 Purpose. 1500.2 Policy. 1500.3 NEPA compliance. 1500.4 Concise and informative environmental documents. 1500.5 Efficient process. 1500.6 Agency authority. ddrumheller on DSK120RN23PROD with PROPOSALS3 PART 1501—NEPA AND AGENCY PLANNING Sec. 1501.1 Purpose. 1501.2 Apply NEPA early in the process. 1501.3 Determine the appropriate level of NEPA review. 1501.4 Categorical exclusions. 1501.5 Environmental assessments. 1501.6 Findings of no significant impact. 1501.7 Lead agency. 1501.8 Cooperating agencies. 1501.9 Public and governmental engagement. 1501.10 Deadlines and schedule for the NEPA process. 1501.11 Programmatic environmental documents and tiering. 1501.12 Incorporation by reference into environmental documents. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 19:24 Jul 28, 2023 Jkt 259001 PART 1505—NEPA AND AGENCY DECISION MAKING PART 1502—ENVIRONMENTAL IMPACT STATEMENT Sec. 1505.1 [Reserved] 1505.2 Record of decision in cases requiring environmental impact statements. 1505.3 Implementing the decision. Sec. 1502.1 Purpose of environmental impact statement. 1502.2 Implementation. 1502.3 Statutory requirements for environmental impact statements. 1502.4 Scoping. 1502.5 Timing. 1502.6 Interdisciplinary preparation. 1502.7 Page limits. 1502.8 Writing. 1502.9 Draft, final, and supplemental statements. 1502.10 Recommended format. 1502.11 Cover. 1502.12 Summary. 1502.13 Purpose and need. 1502.14 Alternatives including the proposed action. 1502.15 Affected environment. 1502.16 Environmental consequences. 1502.17 Summary of scoping information. 1502.18 List of preparers. 1502.19 Appendix. 1502.20 Publication of the environmental impact statement. 1502.21 Incomplete or unavailable information. 1502.22 Cost-benefit analysis. 1502.23 Methodology and scientific accuracy. 1502.24 Environmental review and consultation requirements. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. VerDate Sep<11>2014 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. PART 1503—COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS Sec. 1503.1 Inviting comments and requesting information and analyses. 1503.2 Duty to comment. 1503.3 Specificity of comments and information. 1503.4 Response to comments. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. PART 1504—PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY Sec. 1504.1 Purpose. 1504.2 Early dispute resolution. 1504.3 Criteria and procedure for referrals and response. PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. PART 1506—OTHER REQUIREMENTS OF NEPA Sec. 1506.1 Limitations on actions during NEPA process. 1506.2 Elimination of duplication with State, Tribal, and local procedures. 1506.3 Adoption. 1506.4 Combining documents. 1506.5 Agency responsibility for environmental documents. 1506.6 [Reserved] 1506.7 Further guidance. 1506.8 Proposals for legislation. 1506.9 Filing requirements. 1506.10 Timing of agency action. 1506.11 Emergencies. 1506.12 Innovative approaches to NEPA reviews. 1506.13 Effective date. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. PART 1507—AGENCY COMPLIANCE Sec. 1507.1 1507.2 1507.3 1507.4 Compliance. Agency capability to comply. Agency NEPA procedures. Agency NEPA program information. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. PART 1508—DEFINITIONS Sec. 1508.1 1508.2 Definitions. [Reserved] Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123. PART 1500—PURPOSE AND POLICY § 1500.1 Purpose. (a) The National Environmental Policy Act (NEPA) is the basic national charter for protection of the environment. It establishes policy, sets goals (section 101), and provides direction (section 102) for carrying out the policy. E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (1) Section 101(a) of NEPA establishes the national environmental policy of the Federal Government to use all practicable means and measures to foster and promote the general welfare, create and maintain conditions under which people and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations. Section 101(b) of NEPA establishes the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to help each generation serve as a trustee of the environment for succeeding generations; assure for all people safe, healthful, productive, and aesthetically and culturally pleasing surroundings; attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (2) Section 102(2) of NEPA establishes procedural requirements to carry out the policy and responsibilities established in section 101 of NEPA and contains ‘‘action-forcing’’ procedural provisions to ensure Federal agencies implement the letter and spirit of the Act. The purpose of the regulations in this subchapter is to set forth what Federal agencies must and should do to comply with the procedures and achieve the goals of the Act. The President, the Federal agencies, and the courts share responsibility for enforcing the Act so as to achieve the policy goals of section 101. (b) Federal agency NEPA procedures must ensure that agencies identify, consider, and disclose to the public relevant environmental information early in the process before decisions are made and before actions are taken. The information should be of high quality, science-based, and accessible. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, environmental documents must concentrate on the issues that are truly relevant to the action in question, rather than amassing needless detail. The regulations in this subchapter also VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 are intended to ensure that Federal agencies conduct environmental reviews in a coordinated, consistent, predictable, and timely manner, and to reduce unnecessary burdens and delays. Finally, the regulations in this subchapter promote concurrent environmental reviews to ensure timely and efficient decision making. (c) Ultimately, of course, it is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on an understanding of environmental consequences and take actions that protect, restore, and enhance the environment. The regulations in this subchapter provide the direction to achieve this purpose. § 1500.2 Policy. Federal agencies shall to the fullest extent possible: (a) Interpret and administer the policies, regulations, and public laws of the United States in accordance with the policies set forth in the Act and in these regulations. (b) Implement procedures to make the NEPA process more useful to decision makers and the public; to reduce paperwork and the accumulation of extraneous background data; and to emphasize important environmental issues and alternatives. Environmental documents shall be concise, clear, and supported by evidence that agencies have conducted the necessary environmental analyses. (c) Integrate the requirements of NEPA with other planning and environmental review procedures required by law or by agency practice so that all such procedures run concurrently rather than consecutively. (d) Encourage and facilitate public engagement in decisions that affect the quality of the human environment, including meaningful engagement with communities with environmental justice concerns, which often include communities of color, low-income communities, indigenous communities, and Tribal communities. (e) Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment, such as alternatives that will reduce climate change-related effects or address adverse health and environmental effects that disproportionately affect communities with environmental justice concerns. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 49967 (f) Use all practicable means, consistent with the requirements of the Act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment. § 1500.3 NEPA compliance. (a) Mandate. This subchapter is applicable to and binding on all Federal agencies for implementing the procedural provisions of the National Environmental Policy Act of 1969, as amended (Pub. L. 91–190, 42 U.S.C. 4321 et seq.) (NEPA or the Act). The regulations in this subchapter are issued pursuant to NEPA; the Environmental Quality Improvement Act of 1970, as amended (Pub. L. 91–224, 42 U.S.C. 4371 et seq.); and Executive Order 11514, Protection and Enhancement of Environmental Quality (March 5, 1970), as amended by Executive Order 11991, Relating to the Protection and Enhancement of Environmental Quality (May 24, 1977). The regulations in this subchapter apply to the whole of section 102(2) of NEPA. The provisions of the Act and the regulations in this subchapter must be read together as a whole to comply with the Act. (b) Review of NEPA compliance. It is the Council’s intention that judicial review of agency compliance with the regulations in this subchapter not occur before an agency has issued the record of decision or taken other final agency action, except with respect to claims brought by project sponsors related to deadlines under section 107(g)(3) of NEPA. It is also the Council’s intention that minor, non-substantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action. (c) Severability. The sections of this subchapter are separate and severable from one another. If any section or portion therein is stayed or determined to be invalid, or the applicability of any section to any person or entity is held invalid, it is the Council’s intention that the validity of the remainder of those parts shall not be affected, with the remaining sections to continue in effect. § 1500.4 Concise and informative environmental documents. Agencies shall prepare analytical, concise, and informative environmental documents by: (a) Meeting appropriate page limits (§§ 1501.5(g) and 1502.7 of this subchapter). E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49968 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (b) Discussing only briefly issues other than important ones (e.g., § 1502.2(b) of this subchapter). (c) Writing environmental documents in plain language (e.g., § 1502.8 of this subchapter). (d) Following a clear format for environmental impact statements (§ 1502.10 of this subchapter). (e) Emphasizing the portions of the environmental document that are most useful to decision makers and the public (e.g., §§ 1502.14, 1502.15, and 1502.16 of this subchapter) and reducing emphasis on background material (e.g., § 1502.1 of this subchapter). (f) Using the scoping process to identify important environmental issues deserving of study and to deemphasize unimportant issues, narrowing the scope of the environmental impact statement process (or, where an agency elects to do so, the environmental assessment process) accordingly (§§ 1501.9 and 1502.4 of this subchapter). (g) Summarizing the environmental impact statement (§ 1502.12 of this subchapter). (h) Using programmatic environmental documents and tiering from documents of broad scope to those of narrower scope, to eliminate repetitive discussions of the same issues (§ 1501.11 of this subchapter). (i) Incorporating by reference (§ 1501.12 of this subchapter). (j) Integrating NEPA requirements with other environmental review and consultation requirements (§ 1502.24 of this subchapter). (k) Requiring that comments be as specific as possible (§ 1503.3 of this subchapter). (l) Attaching and publishing only changes to the draft environmental impact statement, rather than rewriting and publishing the entire statement, when changes are minor (§ 1503.4(c) of this subchapter). (m) Eliminating duplication with State, Tribal, and local procedures, by providing for joint preparation of environmental documents where practicable (§ 1506.2 of this subchapter), and with other Federal procedures, by providing that an agency may adopt appropriate environmental documents prepared by another Federal agency (§ 1506.3 of this subchapter). (n) Combining environmental documents with other documents (§ 1506.4 of this subchapter). § 1500.5 Efficient process. Agencies shall improve efficiency of their NEPA processes by: (a) Using categorical exclusions to define categories of actions that VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 normally do not have a significant effect on the human environment (§ 1501.4 of this subchapter) and therefore do not require preparation of an environmental assessment or environmental impact statement. (b) Using a finding of no significant impact when an action not otherwise excluded will not have a significant effect on the human environment (§ 1501.6 of this subchapter) and therefore does not require preparation of an environmental impact statement. (c) Integrating the NEPA process into early planning (§ 1501.2 of this subchapter). (d) Engaging in interagency cooperation before or during the preparation of an environmental assessment or environmental impact statement, rather than waiting to submit comments on a completed document (§§ 1501.7 and 1501.8 of this subchapter). (e) Ensuring the swift and fair resolution of lead agency disputes (§ 1501.7 of this subchapter). (f) Using the scoping process for early identification of the important issues that require detailed analysis (§ 1502.4 of this subchapter). (g) Meeting appropriate deadlines for the environmental assessment and environmental impact statement processes (§ 1501.10 of this subchapter). (h) Preparing environmental documents early in the process (§ 1502.5 and § 1501.5(d) of this subchapter). (i) Integrating NEPA requirements with other environmental review and consultation requirements (§ 1502.24 of this subchapter). (j) Eliminating duplication with State, Tribal, and local procedures by providing for joint preparation of environmental documents where practicable (§ 1506.2 of this subchapter) and with other Federal procedures by providing that agencies may jointly prepare or adopt appropriate environmental documents prepared by another agency (§ 1506.3 of this subchapter). (k) Combining environmental documents with other documents (§ 1506.4 of this subchapter). (l) Using accelerated procedures for proposals for legislation (§ 1506.8 of this subchapter). § 1500.6 Agency authority. Each agency shall interpret the provisions of the Act as a supplement to its existing authority and as a mandate to view policies and missions in the light of the Act’s national environmental objectives, to the extent consistent with its existing authority. Agencies shall review their policies, procedures, and PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 regulations accordingly and revise them as necessary to ensure full compliance with the purposes and provisions of the Act and the regulations in this subchapter. The phrase ‘‘to the fullest extent possible’’ in section 102 of NEPA means that each agency of the Federal Government shall comply with that section unless an agency activity, decision, or action is exempted from NEPA by law or compliance with NEPA is impossible. PART 1501—NEPA AND AGENCY PLANNING § 1501.1 Purpose. The purposes of this part include: (a) Integrating the NEPA process into agency planning at an early stage to facilitate appropriate consideration of NEPA’s policies, promote an efficient process, and reduce delay. (b) Providing for early engagement in the environmental review process with other agencies, State, Tribal, and local governments, and affected or interested persons, entities, and communities before a decision is made. (c) Providing for the swift and fair resolution of interagency disputes. (d) Identifying at an early stage the important environmental issues deserving of study, and deemphasizing unimportant issues, narrowing the scope of the environmental review and enhancing efficiency accordingly. (e) Promoting accountability by establishing appropriate deadlines and requiring schedules. § 1501.2 Apply NEPA early in the process. (a) Agencies should integrate the NEPA process with other planning and authorization processes at the earliest reasonable time to ensure that agencies consider environmental impacts in their planning and decisions, to avoid delays later in the process, and to head off potential conflicts. (b) Each agency shall: (1) Comply with the mandate of section 102(2)(A) of NEPA to utilize a systematic, interdisciplinary approach, which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making that may have an impact on the human environment, as specified by § 1507.2(a) of this subchapter. (2) Identify environmental effects and values in adequate detail so the decision maker can appropriately consider such effects and values alongside economic and technical analyses. Whenever practicable, agencies shall review and publish environmental documents and appropriate analyses at the same time as other planning documents. E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (3) Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources, as provided by section 102(2)(H) of NEPA. (4) Provide for actions subject to NEPA that are planned by applicants or other non-Federal entities before Federal involvement so that: (i) Policies or designated staff are available to advise potential applicants of studies or other information foreseeably required for later Federal action. (ii) The Federal agency consults early with appropriate State, Tribal, and local governments and with interested individuals and organizations when their involvement is reasonably foreseeable. (iii) The Federal agency commences its NEPA process at the earliest reasonable time (§§ 1501.5(d) and 1502.5(b) of this subchapter). ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1501.3 Determine the appropriate level of NEPA review. (a) Applicability. As a threshold determination, an agency shall assess whether NEPA applies to the proposed activity or decision. In assessing whether NEPA applies, Federal agencies should determine: (1) Whether the proposed activity or decision is exempted from NEPA by law; (2) Whether compliance with NEPA would clearly and fundamentally conflict with the requirements of another provision of law; (3) Whether statutory provisions applicable to the agency’s proposed activity or decision make compliance with NEPA impossible; and (4) Whether the proposed activity or decision is a major Federal action, including whether: (i) The proposed activity or decision is a final agency action within the meaning of such term in chapter 5 of title 5, United States Code (§ 1508.1(u)(2)(viii)); or (ii) The proposed activity or decision is a non-discretionary action with respect to which such agency does not have authority to take environmental factors into consideration in determining whether to take the proposed action (§ 1508.1(u)(2)(vi)). (b) Scope of action and analysis. If the agency determines that NEPA applies, the agency shall consider the scope of the proposed action and its potential effects to inform the agency’s determination of the appropriate level of NEPA review. The agency shall evaluate, in a single review, proposals VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 or parts of proposals that are related closely enough to be, in effect, a single course of action. The agency also shall consider whether there are connected actions, which are closely related Federal activities or decisions that should be considered in the same NEPA review that: (1) Automatically trigger other actions that may require NEPA review; (2) Cannot or will not proceed unless other actions are taken previously or simultaneously; or (3) Are interdependent parts of a larger action and depend on the larger action for their justification. (c) Levels of NEPA review. In assessing the appropriate level of NEPA review, agencies may make use of any reliable data source and are not required to undertake new scientific or technical research unless it is essential to a reasoned choice among alternatives, and the overall costs and timeframe of obtaining it are not unreasonable. Agencies should determine whether the proposed action: (1) Normally does not have significant effects and is categorically excluded (§ 1501.4); (2) Is not likely to have significant effects or the significance of the effects is unknown and is therefore appropriate for an environmental assessment (§ 1501.5); or (3) Is likely to have significant effects and is therefore appropriate for an environmental impact statement (part 1502 of this subchapter). (d) Significance determination— context and intensity. In considering whether the effects of the proposed action are significant, agencies shall examine both the context of an action and the intensity of the effects. (1) Agencies shall analyze the significance of an action in several contexts. Agencies should consider the characteristics of the relevant geographic area, such as proximity to unique or sensitive resources or vulnerable communities. Depending on the scope of the action, agencies should consider the potential global, national, regional, and local contexts as well as the duration, including short-and longterm effects. (2) Agencies shall analyze the intensity of effects considering the following factors, as applicable and in relationship to one another: (i) Effects may be beneficial or adverse. However, only actions with significant adverse effects require an environmental impact statement. A significant adverse effect may exist even if the agency considers that on balance the effects of the action will be beneficial. Agencies should consider the PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 49969 duration of effects; for instance, a proposed action may have short-term adverse effects but long-term beneficial effects. (ii) The degree to which the proposed action may adversely affect public health and safety. (iii) The degree to which the proposed action may adversely affect unique characteristics of the geographic area such as historic or cultural resources, park lands, Tribal sacred sites, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (iv) Whether the action may violate relevant Federal, State, Tribal, or local laws or other requirements or be inconsistent with Federal, State, Tribal, or local policies designed for the protection of the environment. (v) The degree to which the potential effects on the human environment are highly uncertain. (vi) The degree to which the action may relate to other actions with adverse environmental effects, including actions that are individually insignificant but significant in the aggregate. Significance cannot be avoided by terming an action temporary that is not temporary in fact or by segmenting it into small component parts. (vii) The degree to which the action may adversely affect resources listed or eligible for listing in the National Register of Historic Places. (viii) The degree to which the action may adversely affect an endangered or threatened species or its habitat, including habitat that has been determined to be critical under the Endangered Species Act of 1973. (ix) The degree to which the action may have disproportionate and adverse effects on communities with environmental justice concerns. (x) The degree to which the action may adversely affect rights of Tribal Nations that have been reserved through treaties, statutes, or Executive Orders. § 1501.4 Categorical exclusions. (a) For efficiency and consistent with § 1507.3(c)(8)(ii) of this subchapter, agencies shall establish categorical exclusions for categories of actions that normally do not have a significant effect on the human environment, individually or in the aggregate, and therefore do not require preparation of an environmental assessment or environmental impact statement unless extraordinary circumstances exist that make application of the categorical exclusion inappropriate, consistent with paragraph (b) of this section. Agencies may establish categorical exclusions individually or jointly with other agencies. E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49970 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (b) If an agency determines that a categorical exclusion identified in its agency NEPA procedures covers a proposed action, the agency shall evaluate the action for extraordinary circumstances in which a normally excluded action may have a significant effect. (1) If an extraordinary circumstance exists, the agency nevertheless may apply the categorical exclusion if the agency conducts an analysis and determines that the proposed action does not in fact have the potential to result in significant effects notwithstanding the extraordinary circumstance or the agency modifies the action to address the extraordinary circumstance. In such cases, the agency shall document such determination and should publish it on the agency’s website or otherwise make it publicly available. (2) If the agency cannot categorically exclude the proposed action, the agency shall prepare an environmental assessment or environmental impact statement, as appropriate. (c) In addition to the process for establishing categorical exclusions under § 1507.3(c)(8) of this subchapter, agencies may establish categorical exclusions through a land use plan, a decision document supported by a programmatic environmental impact statement or programmatic environmental assessment, or other equivalent planning or programmatic decision, so long as the agency: (1) Provides the Council an opportunity to review and comment prior to public comment; (2) Provides notification and an opportunity for public comment; (3) Substantiates its determination that the category of actions normally does not have significant effects, individually or in the aggregate; (4) Identifies extraordinary circumstances; (5) Establishes a process for determining that a categorical exclusion applies to a specific action or actions in the absence of extraordinary circumstances, or, where extraordinary circumstances are present, for determining the agency may apply the categorical exclusion consistent with (b)(1) of this section; and (6) Publishes a list of all categorical exclusions established through these mechanisms on its website. (d) Categorical exclusions established consistent with paragraph (c) of this section or § 1507.3(c)(8) may: (1) Cover specific geographic areas or areas that share common characteristics, e.g., habitat type; (2) Have a limited duration; VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 (3) Include mitigation measures that, in the absence of extraordinary circumstances, will ensure that any environmental effects are not significant, so long as a process is established for monitoring and enforcing any required mitigation measures, including through the suspension or revocation of the relevant agency action; or (4) Provide criteria that would cause the categorical exclusion to expire because the agency’s determination that the category of action does not have significant effects, individually or in the aggregate, is no longer applicable, including, as appropriate, because: (i) The number of individual actions covered by the categorical exclusion exceeds a specific threshold; (ii) Individual actions covered by the categorical exclusion are too close to one another in proximity or time; or (iii) Environmental conditions or information upon which the agency’s determination was based have changed. (e) An agency may apply a categorical exclusion listed in another agency’s NEPA procedures to a proposed action or a category of proposed actions consistent with this paragraph. The agency shall: (1) Identify the categorical exclusion listed in another agency’s NEPA procedures that covers its proposed action or a category of proposed actions; (2) Consult with the agency that established the categorical exclusion to ensure that the proposed application of the categorical exclusion is appropriate; (3) Evaluate the proposed action or category of proposed actions for extraordinary circumstances, consistent with paragraph (b) of this section; (4) Provide public notice of the categorical exclusion that the agency plans to use for the proposed action or category of proposed actions; and (5) Publish the documentation of the application of the categorical exclusion. § 1501.5 Environmental assessments. (a) An agency shall prepare an environmental assessment for a proposed action that is not likely to have significant effects or when the significance of the effects is unknown unless the agency finds that a categorical exclusion (§ 1501.4) is applicable or has decided to prepare an environmental impact statement. (b) An agency may prepare an environmental assessment on any action to assist agency planning and decision making. (c) An environmental assessment shall: (1) Briefly provide sufficient evidence and analysis for determining whether to PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 prepare an environmental impact statement or a finding of no significant impact; (2) Briefly discuss the: (i) Purpose and need for the proposed agency action; (ii) Alternatives as required by section 102(2)(H) of NEPA; and (iii) Environmental effects of the proposed action and alternatives; (3) List the Federal agencies; State, Tribal, and local governments and agencies; or persons consulted; and (4) Provide a unique identification number for tracking purposes, which the agency shall reference on all associated environmental review documents prepared for the proposed action. (d) For applications to the agency requiring an environmental assessment, the agency shall commence the environmental assessment as soon as practicable after receiving the application. (e) If an agency publishes a draft environmental assessment, the agency shall invite public comment and consider those comments in preparing the final environmental assessment. (f) Agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments (see § 1501.9). (g) The text of an environmental assessment shall not exceed 75 pages, not including any citations or appendices. (h) Agencies may supplement environmental assessments if a major Federal action remains to occur, and the agency determines supplementation is appropriate. Agencies may reevaluate an environmental assessment or otherwise document a finding that changes to the proposed action or new circumstances or information relevant to environmental concerns are not substantial, or the underlying assumptions of the analysis remain valid. (i) Agencies generally should apply the provisions of §§ 1502.21 and 1502.23 to environmental assessments. (j) As appropriate to improve efficiency and effectiveness of environmental assessments, agencies may apply the other provisions of part 1502 and 1503 of this subchapter, including §§ 1502.4, 1502.22, 1502.24, and 1503.4, to environmental assessments. § 1501.6 Findings of no significant impact. (a) An agency shall prepare a finding of no significant impact if the agency determines, based on the environmental E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules assessment, not to prepare an environmental impact statement because the proposed action will not have significant effects, or a mitigated finding of no significant impact because the proposed action will not have significant effects due to mitigation. (1) The agency shall make the finding of no significant impact available to the affected public as specified in § 1501.9(d)(2) of this subchapter. (2) In the following circumstances, the agency shall make the finding of no significant impact available for public review for 30 days before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin: (i) The proposed action is or is closely similar to one that normally requires the preparation of an environmental impact statement under the procedures adopted by the agency pursuant to § 1507.3 of this subchapter; or (ii) The nature of the proposed action is one without precedent. (b) The finding of no significant impact shall include the environmental assessment or incorporate it by reference and shall note any other environmental documents related to it (§ 1502.4(d)(3)). If the environmental assessment is included, the finding need not repeat any of the discussion in the assessment but may incorporate it by reference. (c) The finding of no significant impact shall state the authority for any mitigation that the agency has adopted and any applicable monitoring or enforcement provisions. If the agency finds no significant effects based on mitigation, the mitigated finding of no significant impact shall state the enforceable mitigation requirements or commitments that will be undertaken and the authority to enforce them, such as permit conditions, agreements, or other measures. In addition, the agency shall prepare a monitoring and compliance plan for any mitigation the agency relies on as a component of the proposed action consistent with § 1505.3(c) of this subchapter. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1501.7 Lead agency. (a) A lead agency shall supervise the preparation of an environmental impact statement or environmental assessment if more than one Federal agency either: (1) Proposes or is involved in the same action; or (2) Is involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity. (b) Federal, State, Tribal, or local agencies may serve as a joint lead VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 agency to prepare an environmental impact statement or environmental assessment (§ 1506.2 of this subchapter). A joint lead agency shall jointly fulfill the role of a lead agency. (c) If an action falls within the provisions of paragraph (a) of this section, the participating Federal agencies shall determine, by letter or memorandum, which agencies will be lead or joint lead agencies, and the lead agency shall determine which agencies will be cooperating agencies. The agencies shall resolve the lead agency question so as not to cause delay. If there is disagreement among the agencies, the following factors (which are listed in order of descending importance) shall determine lead agency designation: (1) Magnitude of agency’s involvement; (2) Project approval or disapproval authority; (3) Expertise concerning the action’s environmental effects; (4) Duration of agency’s involvement; and (5) Sequence of agency’s involvement. (d) Any Federal, State, Tribal, or local agency or individual substantially affected by the absence of a lead agency designation, may make a written request to the senior agency officials of the potential lead agencies that a lead agency be designated. An agency that receives a request under this paragraph shall transmit such request to each participating Federal agency and to the Council. (e) If Federal agencies are unable to agree on which agency will be the lead agency or if the procedure described in paragraph (c) of this section has not resulted in a lead agency designation within 45 days of the written request to the senior agency officials, any of the agencies or individuals concerned may file a request with the Council asking it to determine which Federal agency shall be the lead agency. The Council shall transmit a copy of the request to each potential lead agency. The request shall consist of: (1) A precise description of the nature and extent of the proposed action; and (2) A detailed statement of why each potential lead agency should or should not be the lead agency under the criteria specified in paragraph (c) of this section. (f) Any potential lead agency may file a response no later than 20 days after a request is filed with the Council. As soon as possible, but not later than 40 days after receiving the request and all responses to it, the Council shall designate which Federal agency will be PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 49971 the lead agency and which other Federal agencies will be cooperating agencies. (g) To the extent practicable, if a proposal will require action by more than one Federal agency and the lead agency determines that it requires preparation of an environmental impact statement, the lead and cooperating agencies shall evaluate the proposal in a single environmental impact statement and shall issue, except where inappropriate or inefficient, a joint record of decision. To the extent practicable, if a proposal will require action by more than one Federal agency and the lead agency determines that it requires preparation of an environmental assessment, the lead and cooperating agencies shall evaluate the proposal in a single environmental assessment and issue a joint finding of no significant impact or jointly determine to prepare an environmental impact statement. (h) With respect to cooperating agencies, the lead agency shall: (1) Request the participation of each cooperating agency in the NEPA process at the earliest practicable time; (2) Consider any analysis or proposal created by a cooperating agency and, to the maximum extent practicable, use the environmental analysis and information provided by cooperating agencies; (3) Meet with a cooperating agency at the latter’s request; and (4) Determine the purpose and need, and alternatives in consultation with any cooperating agency. § 1501.8 Cooperating agencies. (a) The purpose of this section is to emphasize agency cooperation early in the NEPA process. Upon request of the lead agency, any Federal agency with jurisdiction by law shall be a cooperating agency. In addition, upon request of the lead agency, any other Federal agency with special expertise with respect to any environmental issue may be a cooperating agency. A State, Tribal, or local agency of similar qualifications may become a cooperating agency by agreement with the lead agency. Relevant special expertise may include Indigenous Knowledge. An agency may request that the lead agency designate it a cooperating agency, and a Federal agency may appeal a denial of its request to the Council, in accordance with § 1501.7(e). (b) Each cooperating agency shall: (1) Participate in the NEPA process at the earliest practicable time. (2) Participate in the scoping process (described in § 1502.4). (3) On request of the lead agency, assume responsibility for developing E:\FR\FM\31JYP3.SGM 31JYP3 49972 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules information and preparing environmental analyses, including portions of the environmental impact statement or environmental assessment concerning which the cooperating agency has special expertise. (4) On request of the lead agency, make available staff support to enhance the lead agency’s interdisciplinary capability. (5) Normally use its own funds. To the extent available funds permit, the lead agency shall fund those major activities or analyses it requests from cooperating agencies. Potential lead agencies shall include such funding requirements in their budget requests. (6) Consult with the lead agency in developing the schedule (§ 1501.10), meet the schedule, and elevate, as soon as practicable, to the senior agency official of the lead agency any issues relating to purpose and need, alternatives, or other issues that may affect any agencies’ ability to meet the schedule. (7) Meet the lead agency’s schedule for providing comments. (8) To the maximum extent practicable, jointly issue environmental documents with the lead agency. (c) In response to a lead agency’s request for assistance in preparing the environmental documents (described in paragraph (b)(3), (4), or (5) of this section), a cooperating agency may reply that other program commitments preclude any involvement or the degree of involvement requested in the action that is the subject of the environmental impact statement or environmental assessment. The cooperating agency shall submit a copy of this reply to the Council and the senior agency official of the lead agency. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1501.9 Public and governmental engagement. (a) Purpose. Agencies conduct public engagement to inform the public of an agency’s proposed action, allow for meaningful engagement during the NEPA process, and ensure decision makers are informed by the views of the public. Agencies conduct governmental engagement to identify the potentially affected Federal, State, Tribal, and local governments, invite them to serve as cooperating agencies, as appropriate, and ensure that participating agencies have opportunities to engage in the environmental review process, as appropriate. (b) Responsibility. Agencies shall determine the appropriate methods of public and governmental engagement. For environmental impact statements, in addition to the requirements of this section, agencies also shall comply with VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 the requirements for scoping set forth in § 1502.4 of this subchapter. (c) Outreach. The lead agency should: (1) Invite the participation of likely affected Federal, State, Tribal, and local agencies and governments, as early as practicable, including, as appropriate, as cooperating agencies under § 1501.8 of this subchapter; (2) Conduct early engagement with likely affected or interested members of the public (including those who might not be in accord with the action), unless there is a limited exception under § 1507.3(d)(3) of this subchapter; and (3) Consider what methods of outreach and notification are necessary and appropriate based on the likely affected entities; the scope, scale, and complexity of the proposed action and alternatives; the degree of public interest; and other relevant factors. When selecting appropriate methods for providing public notification, agencies shall consider the ability of affected persons and agencies to access electronic media and the primary language of affected persons. (d) Notification. Agencies shall: (1) Publish notification of proposed actions they are analyzing through an environmental impact statement. (2) Provide public notification of NEPA-related hearings, public meetings, and other opportunities for public engagement, and, as appropriate, the availability of environmental documents to inform those persons and agencies who may be interested or affected by their proposed actions. (i) In all cases, the agency shall notify those who have requested notification on an individual action. (ii) In the case of an action with effects of national concern, notice shall include publication in the Federal Register. An agency also may notify entities and persons who have requested regular notification. (iii) In the case of an action with effects primarily of local concern, the notification may include distribution to or through: (A) State, Tribal, and local governments and agencies that may be interested or affected by the proposed action. (B) Following the affected State or Tribe’s public notification procedures for comparable actions. (C) Publication in local newspapers having general circulation. (D) Other local media. (E) Potentially interested community organizations including small business associations. (F) Publication in newsletters that may be expected to reach potentially interested persons. PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 (G) Direct mailing to owners and occupants of nearby or affected property. (H) Posting of notification on- and offsite in the area where the action is to be located. (I) Electronic media (e.g., a project or agency website, dashboard, email list, or social media). Agencies should establish email notification lists or similar methods for the public to easily request electronic notifications for a proposed action. (3) Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act, as amended (5 U.S.C. 552). (e) Public meetings and hearings. Agencies may hold or sponsor public hearings, public meetings, or other opportunities for public engagement whenever appropriate or in accordance with statutory or regulatory requirements or applicable agency NEPA procedures. Agencies may conduct public hearings and public meetings by means of electronic communication except where another format is required by law. When determining the format for a public hearing or public meeting, agencies should consider the needs of affected communities. When accepting comments for electronic or virtual public hearings or meetings, agencies shall allow the public to submit comments electronically, by regular mail, or by other appropriate methods. (f) Agency procedures. Agencies shall make diligent efforts to engage the public in preparing and implementing their NEPA procedures (§ 1507.3 of this subchapter). § 1501.10 Deadlines and schedule for the NEPA process. (a) To ensure that agencies conduct sound NEPA reviews as efficiently and expeditiously as practicable, Federal agencies shall set deadlines and schedules appropriate to individual actions or types of actions consistent with this section and the time intervals required by § 1506.10 of this subchapter. Where applicable, the lead agency shall establish the schedule and make any necessary updates to the schedule in consultation with and seek the concurrence of joint lead, cooperating, and participating agencies, and in consultation with project sponsors or applicants. (b) To ensure timely decision making, agencies shall complete: (1) Environmental assessments within 1 year, unless the lead agency extends the deadline in writing and in E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules consultation with any applicant or project sponsor, and establishes a new deadline that provides only so much additional time as is necessary to complete the environmental assessment. (2) Environmental impact statements within 2 years, unless the lead agency extends the deadline in writing and in consultation with any applicant or project sponsor and establishes a new deadline that provides only so much additional time as is necessary to complete the environmental impact statement. (3) The deadlines in paragraphs (b)(1) and (b)(2) of this section are measured from the sooner of, as applicable: (i) the date on which the agency determines that NEPA requires an environmental impact statement or environmental assessment for the proposed action; (ii) the date on which the agency notifies an applicant that the application to establish a right-of-way for the proposed action is complete; and (iii) the date on which the agency issues a notice of intent for the proposed action. (4) The lead agency shall annually submit the report to Congress on missed deadlines for environmental assessments and environmental impact statements required by section 107(h) of NEPA. (c) To facilitate predictability, the lead agency shall develop a schedule for completion of environmental impact statements and environmental assessments as well as any authorizations required to carry out the action. The lead agency shall set milestones for all environmental reviews, permits, and authorizations required for implementation of the action, in consultation with any project sponsor or applicant and in consultation with and seek the concurrence of all joint lead, cooperating, and participating agencies, as soon as practicable. Schedules may vary depending on the type of action and in consideration of other factors in paragraph (d). The lead agency should develop a schedule that is based on its expertise reviewing similar types of actions under NEPA. If the lead agency or any participating agency anticipates that a milestone, including those for a review, permit, or authorization, will not be completed, it shall notify the agency responsible for the milestone or issuance of the review, permit, or authorization and the lead agency, as applicable, and request that they take appropriate measures to comply with the schedule. As soon as practicable, the lead and any other agency affected by a potentially missed milestone shall VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 elevate any unresolved disputes contributing to the missed milestone to the appropriate officials of the agencies responsible for the missed milestone, to ensure timely resolution within the deadlines for the individual action. (d) The lead agency may consider the following factors in determining the schedule and deadlines: (1) Potential for environmental harm. (2) Size of the proposed action. (3) State of the art of analytic techniques. (4) Degree of public need for the proposed action, including the consequences of delay. (5) Number of persons and agencies affected. (6) Availability of relevant information. (7) Degree to which a substantial dispute exists as to the size, location, nature, or consequences of the proposed action and its effects. (8) Time limits imposed on the agency by law, regulation, or Executive Order. (e) The schedule for environmental impact statements shall include the following milestones: (1) The publication of the notice of intent; (2) The issuance of the draft environmental impact statement; (3) The public comment period on the draft environmental impact statement, consistent with § 1506.10 of this subchapter; (4) The issuance of the final environmental impact statement; and (5) The issuance of the record of decision. (f) The schedule for environmental assessments shall include the following milestones: (1) Decision to prepare an environmental assessment; (2) Issuance of the draft environmental assessment, where applicable; (3) The public comment period on the draft environmental assessment, consistent with § 1501.5 of this subchapter, where applicable; and (4) Issuance of the final environmental assessment and decision on whether to issue a finding of no significant impact or issue a notice of intent to prepare an environmental impact statement. (g) An agency may designate a person (such as the project manager or a person in the agency’s office with NEPA responsibilities) to expedite the NEPA process. (h) For environmental impact statements, agencies shall make schedules for completing the NEPA process publicly available, such as on their website or another publicly PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 49973 accessible platform. If agencies make subsequent changes to the schedule, agencies shall publish revisions to the schedule and explain the basis for substantial changes. § 1501.11 Programmatic environmental documents and tiering. (a) Programmatic environmental document. Agencies may prepare programmatic environmental documents, which may be either environmental impact statements or environmental assessments, to evaluate the environmental effects of policies, programs, plans, or groups of related activities. When agencies prepare such documents, they should be relevant to the agency decisions and timed to coincide with meaningful points in agency planning and decision making. Agencies may use programmatic environmental documents to conduct a broad or holistic evaluation of effects or policy alternatives; evaluate widely applicable measures; or avoid duplicative analysis for individual actions by first considering relevant issues at a broad or programmatic level. (1) When preparing programmatic environmental documents (including proposals by more than one agency), agencies may find it useful to evaluate the proposal(s) in one of the following ways: (i) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area. (ii) Thematically or by sector, including actions that have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, technology, media, or subject matter. (iii) By stage of technological development, including Federal or federally assisted research, development, or demonstration programs for new technologies that, if applied, could significantly affect the quality of the human environment. Documents on such programs should be completed before the program has reached a stage of investment or commitment to implementation likely to determine subsequent development or restrict later alternatives. (2) Agency actions that may be appropriate for programmatic documents include: (i) Programs, policies, or plans, including land use or resource management plans; (ii) Regulations; (iii) National or regional actions; (iv) Actions that have multiple stages or phases, and are part of an overall plan or program; or E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49974 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (v) A group of projects or related types of projects. (3) Agencies should, as appropriate, employ scoping (§ 1502.4 of this subchapter), tiering (paragraph (b) of this section), and other methods listed in §§ 1500.4 and 1500.5 of this subchapter, to describe the relationship between the programmatic document and related individual actions and to avoid duplication and delay. (b) Tiering. Where an existing environmental impact statement, environmental assessment, or programmatic environmental document is relevant to a later proposed action, agencies may employ tiering. Tiering allows subsequent tiered environmental analysis to avoid duplication and focus on issues, effects, or alternatives not fully addressed in a programmatic document, environmental impact statement, or environmental assessment prepared at an earlier phase or stage. Agencies generally should tier their environmental impact statements and environmental assessments when it would eliminate repetitive discussions of the same issues, focus on the actual issues ripe for decision, and exclude from consideration issues already decided. (1) When an agency has prepared a programmatic environmental review or other environmental impact statement or environmental assessment for a program or policy and then prepares a subsequent statement or assessment on an action included within the program or policy (such as a project- or sitespecific action), the tiered document shall discuss the relationship between the tiered document and the previous review, and summarize and incorporate by reference the issues discussed in the broader document. The tiered document shall concentrate on the issues specific to the subsequent action, analyzing site-, phase-, or stage-specific conditions and reasonably foreseeable effects. The agency shall provide for public engagement opportunities consistent with the type of environmental document prepared and appropriate for the location, phase, or stage. The tiered document shall state where the earlier document is publicly available. (2) Tiering is appropriate when the sequence from an environmental impact statement or environmental assessment is: (i) From a programmatic, plan, or policy environmental impact statement or environmental assessment to a program, plan, or policy statement or assessment of lesser or narrower scope or to a site-specific statement or assessment. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 (ii) From an environmental impact statement or environmental assessment on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or assessment at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the agency to focus on the issues that are ripe for decision and exclude from consideration issues already decided or not yet ripe. (c) When an agency prepares a programmatic environmental document for which judicial review was available, the agency may rely on the analysis included in the programmatic environmental document in a subsequent environmental document for related actions as follows: (1) Within 5 years and without additional review of the analysis in the programmatic environmental document, unless there are substantial new circumstances or information about the significance of adverse effects that bear on the analysis; or (2) After 5 years, so long as the agency reevaluates the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid. The agency shall briefly document its reevaluation and explain why the analysis remains valid considering any new and substantial information or circumstances. § 1501.12 Incorporation by reference into environmental documents. Agencies shall incorporate material, such as planning studies, analyses, or other relevant information, into environmental documents by reference when the effect will be to cut down on bulk without impeding agency and public review of the action. Agencies shall cite the incorporated material in the document, briefly describe its content, and briefly explain the relevance of the incorporated material to the environmental document. Agencies shall not incorporate material by reference unless it is reasonably available for inspection, such as on a publicly accessible website, by potentially interested persons within the time allowed for comment. Agencies should provide digital references, such as hyperlinks, to the incorporated material or otherwise indicate how the public can access the material for inspection. Agencies shall not incorporate by reference material based on proprietary data that is not available for review and comment. PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 PART 1502—ENVIRONMENTAL IMPACT STATEMENT § 1502.1 Purpose of environmental impact statement. (a) The primary purpose of an environmental impact statement prepared pursuant to section 102(2)(C) of NEPA is to serve as an action-forcing device by ensuring agencies consider the environmental effects of their action in decision making, so that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government. (b) Environmental impact statements shall provide full and fair discussion of significant effects and shall inform decision makers and the public of reasonable alternatives that would avoid or minimize adverse effects or enhance the quality of the human environment. Agencies shall focus on important environmental issues and reasonable alternatives and shall reduce paperwork and the accumulation of extraneous background data. (c) Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses. An environmental impact statement is more than a disclosure document. Federal agencies shall use environmental impact statements in conjunction with other relevant material to plan actions and make decisions. § 1502.2 Implementation. To achieve the purposes set forth in § 1502.1 agencies shall prepare environmental impact statements in the following manner: (a) Environmental impact statements shall not be encyclopedic. (b) Environmental impact statements shall discuss effects in proportion to their significance. There shall be only brief discussion of other than important issues. As in an environmental assessment and finding of no significant impact, there should be only enough discussion to show why more study is not warranted. (c) Environmental impact statements shall be analytical, concise, and no longer than necessary to comply with NEPA and with the regulations in this subchapter. Length should be proportional to potential environmental effects and the scope and complexity of the action. (d) Environmental impact statements shall state how alternatives considered in them and decisions based on them will or will not achieve the requirements of sections 101 and 102(1) of NEPA, the regulations in this E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules subchapter, and other environmental laws and policies. (e) The range of alternatives discussed in environmental impact statements shall encompass those to be considered by the decision maker. (f) Agencies shall not commit resources prejudicing the selection of alternatives before making a decision (see also § 1506.1 of this subchapter). (g) Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made. § 1502.3 Statutory requirements for environmental impact statements. As required by section 102(2)(C) of NEPA, environmental impact statements are to be included in every Federal agency recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1502.4 Scoping. (a) Generally. Agencies shall use an early and open process, consistent with § 1501.9 of this subchapter, to determine the scope of issues for analysis in an environmental impact statement, including identifying the important issues and eliminating from further study unimportant issues. Scoping may begin as soon as practicable after the proposal for action is sufficiently developed for agency consideration. Scoping may include appropriate preapplication procedures or work conducted prior to publication of the notice of intent (see §§ 1501.3 and 1501.9 of this subchapter). (b) Scoping outreach. When preparing an environmental impact statement, agencies shall facilitate notification to persons and agencies who may be interested or affected by an agency’s proposed action, consistent with § 1501.9 of this subchapter. As part of the scoping process, the lead agency may hold a scoping meeting or meetings, publish scoping information, or use other means to communicate with those persons or agencies who may be interested or affected, which the agency may integrate with any other early planning meeting. (c) Inviting participation. As part of the scoping process, and consistent with § 1501.9 of this subchapter, the lead agency shall invite the participation of likely affected Federal, State, Tribal, and local agencies and governments, the proponent of the action, and other likely affected or interested persons (including those who might not be in accord with the action), unless there is a limited VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 exception under § 1507.3(d)(3) of this subchapter. (d) Additional scoping responsibilities. As part of the scoping process, the lead agency shall: (1) Identify and eliminate from detailed study the issues that are not important or have been covered by prior environmental review(s) (§§ 1501.12 and 1506.3 of this subchapter), narrowing the discussion of these issues in the environmental impact statement to a brief presentation of why they will not be important or providing a reference to their coverage elsewhere. (2) Allocate assignments for preparation of the environmental impact statement among the lead and cooperating agencies, with the lead agency retaining responsibility for the statement. (3) Indicate any public environmental assessments and other environmental impact statements that are being or will be prepared and are related to but are not part of the scope of the environmental impact statement under consideration. (4) Identify other environmental review, authorization, and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently and integrated with the environmental impact statement, as provided in § 1502.24 of this subchapter. (5) Indicate the relationship between the timing of the preparation of environmental analyses and the agencies’ tentative planning and decision-making schedule. (e) Notice of intent. As soon as practicable after determining that a proposal is sufficiently developed to allow for meaningful public comment and requires an environmental impact statement, the lead agency shall publish a notice of intent to prepare an environmental impact statement in the Federal Register. In addition to the Federal Register notice, an agency also may publish notification in accordance with § 1501.9 of this subchapter. The notice shall include, as appropriate: (1) The purpose and need for the proposed action; (2) A preliminary description of the proposed action and alternatives the environmental impact statement will consider; (3) A brief summary of expected effects; (4) Anticipated permits and other authorizations; (5) A schedule for the decisionmaking process; PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 49975 (6) A description of the public scoping process, including any scoping meeting(s); (7) A request for comment on alternatives and effects, as well as on relevant information, studies, or analyses with respect to the proposed action; (8) Contact information for a person within the agency who can answer questions about the proposed action and the environmental impact statement; (9) Identification of any cooperating and participating agencies, and any information that such agencies require in the notice to facilitate their decisions or authorizations that will rely upon the resulting environmental impact statement; and (10) A unique identification number for tracking purposes, which the agency shall reference on all environmental documents prepared for the proposed action. (f) Notices of withdrawal or cancellation. If an agency withdraws, cancels, or otherwise ceases the consideration of a proposed action before completing a final environmental impact statement, the agency shall publish a notice in the Federal Register. (g) Revisions. An agency shall revise the determinations made under paragraphs (b), (c), and (d) of this section if substantial changes are made later in the proposed action, or if important new circumstances or information arise that bear on the proposal or its effects. § 1502.5 Timing. An agency should commence preparation of an environmental impact statement as close as practicable to the time the agency is developing or receives a proposal so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it can serve as an important practical contribution to the decision-making process and will not be used to rationalize or justify decisions already made (§§ 1501.2 of this subchapter and 1502.2). For instance: (a) For projects directly undertaken by Federal agencies, the agency shall prepare the environmental impact statement at the feasibility analysis (e.g., go/no-go) stage and may supplement it at a later stage, if necessary. (b) For applications to the agency requiring an environmental impact statement, the agency shall commence the statement as soon as practicable after receiving the complete application. Federal agencies should work together E:\FR\FM\31JYP3.SGM 31JYP3 49976 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules and with potential applicants and applicable State, Tribal, and local agencies and governments prior to receipt of the application. (c) For adjudication, the final environmental impact statement shall normally precede the final staff recommendation and that portion of the public hearing related to the impact study. In appropriate circumstances, the statement may follow preliminary hearings designed to gather information for use in the statement. (d) For informal rulemaking, the draft environmental impact statement shall normally accompany the proposed rule. § 1502.6 Interdisciplinary preparation. Agencies shall prepare environmental impact statements using an interdisciplinary approach that will ensure the integrated use of the natural and social sciences and the environmental design arts (section 102(2)(A) of NEPA). The disciplines of the preparers shall be appropriate to the scope and issues identified in the scoping process (§ 1502.4 of this subchapter). § 1502.7 Page limits. The text of final environmental impact statements, not including citations or appendices, shall not exceed 150 pages except for proposals of extraordinary complexity, which shall not exceed 300 pages. § 1502.8 Writing. Agencies shall write environmental impact statements in plain language and should use, as relevant, appropriate visual aids or charts so that decision makers and the public can readily understand such statements. Agencies should employ writers of clear prose or editors to write, review, or edit statements, which shall be based upon the analysis and supporting data from the natural and social sciences and the environmental design arts. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1502.9 Draft, final, and supplemental statements. (a) Generally. Except for proposals for legislation as provided in § 1506.8 of this subchapter, agencies shall prepare environmental impact statements in two stages and, where necessary, supplement them as provided in paragraph (d)(1) of this section. (b) Draft environmental impact statements. Agencies shall prepare draft environmental impact statements in accordance with the scope decided upon in the scoping process (§ 1502.4 of this subchapter). The lead agency shall work with the cooperating agencies and shall obtain comments as required in part 1503 of this subchapter. To the VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 fullest extent practicable, the draft statement must meet the requirements established for final statements in section 102(2)(C) of NEPA and in the regulations in this subchapter. If the agency determines that a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and publish a supplemental draft of the appropriate portion. At appropriate points in the draft statement, the agency shall discuss all major points of view on the environmental effects of the alternatives, including the proposed action. (c) Final environmental impact statements. Final environmental impact statements shall consider and respond to comments as required in part 1503 of this subchapter. At appropriate points in the final statement, the agency shall discuss any responsible opposing view that was not adequately discussed in the draft statement and shall indicate the agency’s response to the issues raised. (d) Supplemental environmental impact statements. Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if a major Federal action remains to occur, and: (i) The agency makes substantial changes to the proposed action that are relevant to environmental concerns; or (ii) There are substantial or important new circumstances or information relevant to environmental concerns and bearing on the proposed action or its effects. (2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered by doing so. (3) Shall prepare, publish, and file a supplement to a statement (exclusive of scoping (§ 1502.4 of this subchapter)) as a draft and final statement, as is appropriate to the stage of the statement involved, unless the Council approves alternative procedures (§ 1506.12 of this subchapter). (e) Reevaluation. An agency may reevaluate an environmental impact statement and find that changes to the proposed action or new circumstances or information relevant to environmental concerns are not substantial or that the underlying assumptions of the analysis remains valid, and therefore do not require a supplement under paragraph (d) of this section. The agency should document the finding consistent with its agency NEPA procedures (§ 1507.3 of this subchapter), or, if necessary, in a finding of no significant impact supported by an environmental assessment. PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 § 1502.10 Recommended format. (a) Agencies shall use a format for environmental impact statements that will encourage good analysis and clear presentation of the alternatives, including the proposed action. Agencies should use the following standard format for environmental impact statements unless the agency determines that there is a more effective format for communication: (1) Cover (§ 1501.11); (2) Summary (§ 1502.12); (3) Table of contents; (4) Purpose of and need for action (§ 1502.13); (5) Alternatives including the proposed action (sections 102(2)(C)(iii) and 102(2)(H) of NEPA) (§ 1502.14); (6) Affected environment and environmental consequences (especially sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA) (§§ 1502.15 and 1502.16); and (7) Appendices (§ 1502.19), including the summary of scoping information (§ 1502.17) and the list of preparers (§ 1502.18). (b) If an agency uses a different format, it shall include paragraph (a) of this section, as further described in §§ 1502.11 through 1502.19, in any appropriate format. § 1502.11 Cover. The environmental impact statement cover shall not exceed one page and shall include: (a) A list of the lead, joint lead and any cooperating agencies; (b) The title of the proposed action that is the subject of the statement (and, if appropriate, the titles of related cooperating agency actions), together with the State(s) and county(ies) (or other jurisdiction(s), if applicable) where the action is located; (c) The name, address, and telephone number of the person at the agency who can supply further information; (d) A designation of the statement as a draft, final, or draft or final supplement; (e) A one-paragraph abstract of the statement; (f) The date by which the agency must receive comments (computed in cooperation with the Environmental Protection Agency under § 1506.10 of this subchapter); and (g) The identification number included in the notice of intent (§ 1502.4(e)(10)). § 1502.12 Summary. Each environmental impact statement shall contain a summary that adequately and accurately summarizes the statement. The summary shall include the major conclusions and summarize E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules any disputed issues raised by agencies and the public, any issues to be resolved, and key differences among alternatives, and identify the environmentally preferable alternative or alternatives. Agencies shall write the summary in plain language and should use, as relevant, appropriate visual aids and charts. The summary normally should not exceed 15 pages. § 1502.13 Purpose and need. The environmental impact statement shall include a statement that briefly summarizes the underlying purpose and need for the proposed agency action. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1502.14 Alternatives including the proposed action. § 1502.15 The alternatives section is the heart of the environmental impact statement. The alternatives section should identify the reasonably foreseeable environmental effects of the proposed action and the alternatives in comparative form based on the information and analysis presented in the sections on the affected environment (§ 1502.15) and the environmental consequences (§ 1502.16). In doing so, the analysis should sharply define the issues for the decision maker and the public and provide a clear basis for choice among options. In this section, agencies shall: (a) Rigorously explore and objectively evaluate reasonable alternatives to the proposed action, and, for alternatives that the agency eliminated from detailed study, briefly discuss the reasons for their elimination. The agency need not consider every conceivable alternative to a proposed action; rather, it shall consider a reasonable range of alternatives that will foster informed decision making. Agencies also may include reasonable alternatives not within the jurisdiction of the lead agency. (b) Discuss each alternative considered in detail, including the proposed action, so that reviewers may evaluate their comparative merits. (c) Include the no action alternative. (d) Identify the agency’s preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference. (e) Include appropriate mitigation measures not already included in the proposed action or alternatives. (f) Identify the environmentally preferable alternative or alternatives. The environmentally preferable alternative will best promote the national environmental policy expressed in section 101 of NEPA by VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 maximizing environmental benefits, such as addressing climate changerelated effects or disproportionate and adverse effects on communities with environmental justice concerns; protecting, preserving, or enhancing historic, cultural, Tribal, and natural resources, including rights of Tribal Nations that have been reserved through treaties, statutes, or Executive Orders; or causing the least damage to the biological and physical environment. The environmentally preferable alternative may be the proposed action, the no action alternative, or a reasonable alternative. Affected environment. (a) The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration, including the reasonably foreseeable environmental trends and planned actions in the area(s). (b) Agencies should use high-quality information, including the best available science and data, to describe reasonably foreseeable environmental trends, including anticipated climate-related changes to the environment, and when such information is lacking, provide relevant information consistent with § 1502.21. This description of baseline environmental conditions and reasonably foreseeable trends should inform the agency’s analysis of environmental consequences and mitigation measures (§ 1502.16). (c) The environmental impact statement may combine the description of the affected environment with evaluation of the environmental consequences (§ 1502.16). The description should be no longer than necessary to understand the relevant affected environment and the effects of the alternatives. Data and analyses in a statement shall be commensurate with the importance of the effect, with less important material summarized, consolidated, or simply referenced. Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on important issues. Verbose descriptions of the affected environment are themselves no measure of the adequacy of an environmental impact statement. § 1502.16 Environmental consequences. (a) The environmental consequences section forms the scientific and analytic basis for the comparisons under § 1502.14. It shall consolidate the discussions of those elements required by sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA that are within the scope of the environmental impact statement and as PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 49977 much of section 102(2)(C)(iii) of NEPA as is necessary to support the comparisons. This section should not duplicate discussions in § 1502.14. The discussion shall include: (1) The reasonably foreseeable environmental effects of the proposed action and reasonable alternatives to the proposed action and the significance of those effects (§ 1501.3 of this subchapter). The comparison of the proposed action and reasonable alternatives shall be based on the discussion of the effects, focusing on the significant or important effects. The no action alternative should serve as the baseline against which the proposed action and other alternatives are compared. (2) Any reasonably foreseeable adverse environmental effects that cannot be avoided should the proposal be implemented. (3) An analysis of the effects of the no action alternative, including any adverse environmental effects. (4) The relationship between shortterm uses of the human environment and the maintenance and enhancement of long-term productivity. (5) Any irreversible or irretrievable commitments of Federal resources that would be involved in the proposal should it be implemented. (6) Possible conflicts between the proposed action and the objectives of Federal, regional, State, Tribal, and local plans, policies, and controls for the area concerned, including those addressing climate change (§ 1506.2(d) of this subchapter). (7) Any reasonably foreseeable climate change-related effects, including the effects of climate change on the proposed action and alternatives. (8) Energy requirements and conservation potential of various alternatives and mitigation measures. (9) Natural or depletable resource requirements and conservation potential of various alternatives and mitigation measures. (10) Any relevant risk reduction, resiliency, or adaptation measures incorporated into the proposed action or alternatives, informed by relevant science and data on the affected environment and expected future conditions. (11) Urban quality, historic and cultural resources, and the design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures. (12) Means to mitigate adverse environmental impacts (if not fully covered under § 1502.14(e)). (13) Where applicable, economic and technical considerations, including the E:\FR\FM\31JYP3.SGM 31JYP3 49978 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules economic benefits of the proposed action. (14) The potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns. (b) Economic or social effects by themselves do not require preparation of an environmental impact statement. However, when the agency determines that economic or social and natural or physical environmental effects are interrelated, the environmental impact statement shall discuss these effects on the human environment. § 1502.17 Summary of scoping information. (a) The draft environmental impact statement shall include a summary of information, including alternatives and analyses, submitted by commenters during the scoping process for consideration by the lead and cooperating agencies in their development of the draft environmental impact statement. (b) The agency shall append to the draft environmental impact statement or otherwise make publicly available all comments (or summaries thereof where the response has been exceptionally voluminous) received during the scoping process. § 1502.18 List of preparers. The environmental impact statement shall list the names, together with their qualifications (expertise, experience, professional disciplines), of the persons who were primarily responsible for preparing the environmental impact statement or important background papers, including basic components of the statement. Where possible, the environmental impact statement shall identify the persons who are responsible for a particular analysis, including analyses in background papers. Normally the list will not exceed two pages. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1502.19 Appendix. If an agency prepares an appendix, the agency shall publish it with the environmental impact statement, and it shall consist of, as appropriate: (a) Material prepared in connection with an environmental impact statement (as distinct from material that is not so prepared and is incorporated by reference (§ 1501.12 of this subchapter)). (b) Material substantiating any analysis fundamental to the impact statement. (c) Material relevant to the decision to be made. (d) For draft environmental impact statements, all comments (or summaries VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 thereof where the response has been exceptionally voluminous) received during the scoping process that identified information for the agency’s consideration. (e) For final environmental impact statements, the comment summaries and responses consistent with § 1503.4 of this chapter. § 1502.20 Publication of the environmental impact statement. Agencies shall publish the entire draft and final environmental impact statements and unchanged statements as provided in § 1503.4(c) of this subchapter. The agency shall transmit the entire statement electronically (or in paper copy, if requested due to economic or other hardship) to: (a) Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved and any appropriate Federal, State, Tribal, or local agency authorized to develop and enforce environmental standards. (b) The applicant, if any. (c) Any person, organization, or agency requesting the entire environmental impact statement. (d) In the case of a final environmental impact statement, any person, organization, or agency that submitted substantive comments on the draft. § 1502.21 Incomplete or unavailable information. (a) When an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement, and there is incomplete or unavailable information, the agency shall make clear that such information is lacking. (b) If the incomplete information relevant to reasonably foreseeable significant adverse effects is essential to a reasoned choice among alternatives, and the overall costs of obtaining it are not unreasonable, the agency shall include the information in the environmental impact statement. (c) If the information relevant to reasonably foreseeable significant adverse effects cannot be obtained because the overall costs of obtaining it are unreasonable or the means to obtain it are not known, the agency shall include within the environmental impact statement: (1) A statement that such information is incomplete or unavailable; (2) A statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse effects on the human environment; PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 (3) A summary of existing credible scientific evidence that is relevant to evaluating the reasonably foreseeable significant adverse effects on the human environment; and (4) The agency’s evaluation of such effects based upon theoretical approaches or research methods generally accepted in the scientific community. (d) For the purposes of this section, ‘‘reasonably foreseeable’’ includes effects that have catastrophic consequences, even if their probability of occurrence is low, provided that the analysis of the effects is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason. § 1502.22 Cost-benefit analysis. If an agency is considering a costbenefit analysis for the proposed action relevant to the choice among alternatives with different environmental effects, the agency shall incorporate the cost-benefit analysis by reference or append it to the statement as an aid in evaluating the environmental consequences. In such cases, to assess the adequacy of compliance with section 102(2)(B) of NEPA (ensuring appropriate consideration of unquantified environmental amenities and values in decision making, along with economical and technical considerations), the statement shall discuss the relationship between that analysis and any analyses of unquantified environmental impacts, values, and amenities. For purposes of complying with the Act, agencies need not display the weighing of the merits and drawbacks of the various alternatives in a monetary cost-benefit analysis and should not do so when there are important qualitative considerations. However, an environmental impact statement should at least indicate those considerations, including factors not related to environmental quality, that are likely to be relevant and important to a decision. § 1502.23 Methodology and scientific accuracy. (a) Agencies shall ensure the professional integrity, including scientific integrity, of the discussions and analyses in environmental documents. Agencies shall use highquality information, such as best available science and reliable data, models, and resources, including existing sources and materials, to analyze effects resulting from a proposed action and alternatives. Agencies may use any reliable data sources, such as remotely gathered E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules information or statistical models. Agencies should explain any relevant assumptions or limitations of the information or the particular model or methodology selected for use. (b) Agencies shall identify any methodologies used and shall make explicit reference to the scientific and other sources relied upon for conclusions in the statement. Agencies may place discussion of methodology in an appendix. Nothing in this section is intended to prohibit agencies from compliance with the requirements of other statutes pertaining to scientific and technical research. (c) Where appropriate, agencies shall use projections when evaluating the reasonably foreseeable effects, including climate change-related effects. Such projections may employ mathematical or other models that project a range of possible future outcomes, so long as agencies disclose the relevant assumptions or limitations. § 1502.24 Environmental review and consultation requirements. (a) To the fullest extent possible, agencies shall prepare draft environmental impact statements concurrent and integrated with environmental impact analyses and related surveys and studies required by all other Federal environmental review laws and Executive orders applicable to the proposed action, including the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), the National Historic Preservation Act of 1966 (54 U.S.C. 300101 et seq.), and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). (b) The draft environmental impact statement shall list all Federal permits, licenses, and other authorizations that must be obtained in implementing the proposal. If it is uncertain whether a Federal permit, license, or other authorization is necessary, the draft environmental impact statement shall so indicate. PART 1503—COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1503.1 Inviting comments and requesting information and analyses. (a) After preparing a draft environmental impact statement and before preparing a final environmental impact statement the agency shall: (1) Obtain the comments of any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved or is authorized to develop and enforce environmental standards; and VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 (2) Request the comments of: (i) Appropriate State, Tribal, and local agencies that are authorized to develop and enforce environmental standards; (ii) State, Tribal, or local governments that may be affected by the proposed action; (iii) Any agency that has requested it receive statements on actions of the kind proposed; (iv) The applicant, if any; and (v) The public, affirmatively soliciting comments in a manner designed to inform those persons or organizations who may be interested in or affected by the proposed action. (b) An agency may request comments on a final environmental impact statement before the final decision and set a deadline for providing such comments. Other agencies or persons may make comments consistent with the time periods under § 1506.10 of this subchapter. (c) An agency shall provide for electronic submission of public comments, with reasonable measures to ensure the comment process is accessible to affected persons. § 1503.2 Duty to comment. Cooperating agencies and agencies that are authorized to develop and enforce environmental standards shall comment on environmental impact statements within their jurisdiction, expertise, or authority within the time period specified for comment in § 1506.10 of this subchapter. A Federal agency may reply that it has no comment. If a cooperating agency is satisfied that the environmental impact statement adequately reflects its views, it should reply that it has no comment. § 1503.3 Specificity of comments and information. (a) To promote informed decision making, comments on an environmental impact statement or on a proposed action shall be as specific as possible, and may address either the adequacy of the statement or the merits of the alternatives discussed or both. Comments should explain why the issues raised are important to the consideration of potential environmental effects and alternatives to the proposed action. Where possible, comments should reference the corresponding section or page number of the draft environmental impact statement, propose specific changes to those parts of the statement, and describe any data, sources, or methodologies that support the proposed changes. (b) When a participating agency criticizes a lead agency’s predictive PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 49979 methodology, the participating agency should describe the alternative methodology that it prefers and why. (c) A cooperating agency shall specify in its comments whether it needs additional information to fulfill other applicable environmental review or consultation requirements and what information it needs. In particular, it shall specify any additional information it needs to comment adequately on the draft statement’s analysis of significant effects associated with the granting or approving by that cooperating agency of necessary Federal permits, licenses, or authorizations. (d) A cooperating agency with jurisdiction by law shall specify mitigation measures it considers necessary to allow the agency to grant or approve applicable authorizations or concurrences. § 1503.4 Response to comments. (a) An agency preparing a final environmental impact statement shall consider substantive comments timely submitted during the public comment period. The agency shall respond to individual comments or groups of comments. In the final environmental impact statement, the agency may respond by: (1) Modifying alternatives including the proposed action; (2) Developing and evaluating alternatives not previously given serious consideration by the agency; (3) Supplementing, improving, or modifying its analyses; (4) Making factual corrections; or (5) Explaining why the comments do not warrant further agency response, recognizing that agencies are not required to respond to each comment. (b) An agency shall append or otherwise publish all substantive comments received on the draft statement (or summaries thereof where the response has been exceptionally voluminous). (c) If changes in response to comments are minor and are confined to the responses described in paragraphs (a)(4) and (5) of this section, an agency may write any changes on errata sheets and attach the responses to the statement instead of rewriting the draft statement. In such cases, the agency shall publish the final statement (§ 1502.20 of this subchapter), which includes the draft statement, the comments, responses to those comments, and errata sheets. The agency shall file the final statement with the Environmental Protection Agency (§ 1506.10 of this subchapter). E:\FR\FM\31JYP3.SGM 31JYP3 49980 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules PART 1504—PRE–DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY § 1504.1 Purpose. (a) This part establishes procedures for referring to the Council Federal interagency disagreements concerning proposed major Federal actions that might cause unsatisfactory environmental effects. It provides means for early resolution of such disagreements, and encourages Federal agencies to engage with each other as early as practicable to resolve interagency disagreements concerning proposed major Federal actions before referring disputes to the Council. This part also establishes procedures for Federal agencies to submit a request to the Council to provide informal dispute resolution on NEPA issues before formally referring disputes to the Council. (b) Section 309 of the Clean Air Act (42 U.S.C. 7609) directs the Administrator of the Environmental Protection Agency to review and comment publicly on the environmental impacts of Federal activities, including actions for which agencies prepare environmental impact statements. If, after this review, the Administrator determines that the matter is ‘‘unsatisfactory from the standpoint of public health or welfare or environmental quality,’’ section 309 directs that the matter be referred to the Council. (c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other Federal agencies may prepare similar reviews of environmental impact statements, including judgments on the acceptability of anticipated environmental impacts. These agencies must make these reviews available to the President, the Council, and the public. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1504.2 Early dispute resolution. (a) Federal agencies should engage in interagency coordination and collaboration in their planning and decision-making processes and should identify and resolve disputes concerning proposed major Federal actions early in the NEPA process. To the extent practicable, agencies should elevate issues to appropriate agency officials or the Council in a timely manner that will accommodate schedules consistent with § 1501.10 of this subchapter. (b) A Federal agency may request that the Council engage in informal dispute VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 resolution to provide recommendations on how to resolve an interagency dispute concerning an environmental review. In making the request, the agency shall provide the Council with a summary of the proposed action, information on the disputed issues, and agency points of contact. (c) In response to a request for informal dispute resolution, the Council may request additional information, provide non-binding recommendations, convene meetings of those agency decision makers necessary to resolve disputes, or determine that informal dispute resolution is unhelpful or inappropriate. § 1504.3 Criteria and procedure for referrals and response. (a) Federal agencies should make environmental referrals to the Council only after concerted, timely (as early as practicable in the process), but unsuccessful attempts to resolve differences with the lead agency. In determining what environmental objections to the matter are appropriate to refer to the Council, an agency should weigh potential adverse environmental effects, considering: (1) Possible violation of national environmental standards or policies; (2) Severity; (3) Geographical scope; (4) Duration; (5) Importance as precedents; (6) Availability of environmentally preferable alternatives; and (7) Economic and technical considerations, including the economic costs of delaying or impeding the decision making of the agencies involved in the action. (b) A Federal agency making the referral to the Council shall: (1) Notify the lead agency at the earliest possible time that it intends to refer a matter to the Council unless a satisfactory agreement is reached; (2) Include such a notification whenever practicable in the referring agency’s comments on the environmental assessment or draft environmental impact statement; (3) Identify any essential information that is lacking and request that the lead agency make it available at the earliest possible time; and (4) Send copies of the referring agency’s views to the Council. (c) The referring agency shall deliver its referral to the Council no later than 25 days after the lead agency has made the final environmental impact statement available to the Environmental Protection Agency, participating agencies, and the public, and in the case of an environmental PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 assessment, no later than 25 days after the lead agency makes it available. Except when the lead agency grants an extension of this period, the Council will not accept a referral after that date. (d) The referral shall consist of: (1) A copy of the letter signed by the head of the referring agency and delivered to the lead agency informing the lead agency of the referral and the reasons for it; and (2) A statement supported by factual evidence leading to the conclusion that the matter is unsatisfactory from the standpoint of public health or welfare or environmental quality. The statement shall: (i) Identify any disputed material facts and incorporate (by reference if appropriate) agreed upon facts; (ii) Identify any existing environmental requirements or policies that would be violated by the matter; (iii) Present the reasons for the referral; (iv) Contain a finding by the agency whether the issue raised is of national importance because of the threat to national environmental resources or policies or for some other reason; (v) Review the steps taken by the referring agency to bring its concerns to the attention of the lead agency at the earliest possible time; and (vi) Give the referring agency’s recommendations as to what mitigation alternative, further study, or other course of action (including abandonment of the matter) are necessary to remedy the situation. (e) No later than 25 days after the referral to the Council, the lead agency may deliver a response to the Council and the referring agency. If the lead agency requests more time and gives assurance that the matter will not go forward in the interim, the Council may grant an extension. The response shall: (1) Address fully the issues raised in the referral; (2) Be supported by evidence and explanations, as appropriate; and (3) Give the lead agency’s response to the referring agency’s recommendations. (f) Applicants may provide views in writing to the Council no later than the response. (g) No later than 25 days after receipt of both the referral and any response or upon being informed that there will be no response (unless the lead agency agrees to a longer time), the Council may take one or more of the following actions: (1) Conclude that the process of referral and response has successfully resolved the problem. (2) Initiate discussions with the agencies with the objective of mediation with referring and lead agencies. E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (3) Obtain additional views and information. (4) Determine that the issue is not one of national importance and request the referring and lead agencies to pursue their decision process. (5) Determine that the referring and lead agencies should further negotiate the issue, and the issue is not appropriate for Council consideration until one or more heads of agencies report to the Council that the agencies’ disagreements are irreconcilable. (6) Publish its findings and recommendations (including, where appropriate, a finding that the submitted evidence does not support the position of an agency). (7) When appropriate, submit the referral and the response together with the Council’s recommendation to the President for action. (h) The Council shall take no longer than 60 days to complete the actions specified in paragraph (g)(2), (3), or (5) of this section. (i) The referral process is not intended to create any private rights of action or to be judicially reviewable because any voluntary resolutions by the agency parties do not represent final agency action and instead are only provisional and dependent on later consistent action by the action agencies. PART 1505—NEPA AND AGENCY DECISION MAKING § 1505.1 [Reserved] ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1505.2 Record of decision in cases requiring environmental impact statements. At the time of its decision (§ 1506.10 of this subchapter) or, if appropriate, its recommendation to Congress, each agency shall prepare and timely publish a concise public record of decision or joint record of decision. The record, which each agency may integrate into any other record it prepares, shall: (a) State the decision. (b) Identify alternatives considered by the agency in reaching its decision. The agency also shall specify the environmentally preferable alternative or alternatives (§ 1502.14(f) of this subchapter). The agency may discuss preferences among alternatives based on relevant factors, including environmental, economic, and technical considerations and agency statutory missions. The agency shall identify and discuss all such factors, including any essential considerations of national policy, that the agency balanced in making its decision and state how those considerations entered into its decision. (c) State whether the agency has adopted all practicable means to mitigate environmental harm from the VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 alternative selected, and if not, why the agency did not. When an agency includes mitigation as a component of the proposed action and relies on implementation of that mitigation to analyze the reasonably foreseeable environmental effects, the mitigation shall be enforceable, such as through permit conditions, agreements, or other measures. The agency shall identify the authority for enforceable mitigation, and adopt a monitoring and compliance plan consistent with § 1505.3(c). § 1505.3 Implementing the decision. (a) Agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. Mitigation (§ 1505.2(c)) and other conditions established in the environmental impact statement or during its review and committed as part of the decision shall be implemented by the lead agency or other appropriate consenting agency. The lead agency shall: (1) Include appropriate conditions in grants, permits, or other approvals; and (2) Condition funding of actions on mitigation. (b) The lead or cooperating agency should, where relevant and appropriate, incorporate mitigation measures that address or ameliorate significant adverse human health and environmental effects of proposed Federal actions that disproportionately and adversely affect communities with environmental justice concerns. (c) The lead or cooperating agency shall prepare a monitoring and compliance plan when the environmental assessment or environmental impact statement relies on mitigation as a component of the proposed action to analyze the reasonably foreseeable environmental effects, including to determine the significance of those effects, and the agency incorporates the mitigation into a record of decision, finding of no significant impact, or separate document, consistent with the following: (1) Contents. The agency should tailor the plan to the complexity of the mitigation committed to and include: (i) A basic description of the mitigation measure or measures; (ii) The parties responsible for monitoring and implementing the mitigation; (iii) If appropriate, how monitoring information will be made publicly available; (iv) The anticipated timeframe for implementing and completing mitigation; PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 49981 (v) The standards for determining compliance with the mitigation and the consequences of non-compliance; and (vi) How the mitigation will be funded. (2) No ongoing Federal action. An agency does not need to supplement its environmental impact statement or environmental assessment or revise its record of decision or finding of no significant impact or separate decision document based solely on new information developed through the monitoring and compliance plan. PART 1506—OTHER REQUIREMENTS OF NEPA § 1506.1 Limitations on actions during NEPA process. (a) Except as provided in paragraphs (b) and (c) of this section, until an agency issues a finding of no significant impact, as provided in § 1501.6 of this subchapter, or record of decision, as provided in § 1505.2 of this subchapter, no action concerning the proposal may be taken that would: (1) Have an adverse environmental effect; or (2) Limit the choice of reasonable alternatives. (b) If an agency is considering an application from a non-Federal entity and is aware that the applicant is about to take an action within the agency’s jurisdiction that would meet either of the criteria in paragraph (a) of this section, then the agency shall promptly notify the applicant that the agency will take appropriate action to ensure that the objectives and procedures of NEPA are achieved. This section does not preclude development by applicants of plans or designs or performance of other activities necessary to support an application for Federal, State, Tribal, or local permits or assistance. An agency considering a proposed action for Federal funding may authorize such activities, including, but not limited to, acquisition of interests in land (e.g., fee simple, rights-of-way, and conservation easements), purchase of long lead-time equipment, and purchase options made by applicants, if the agency determines that such activities would not limit the choice of reasonable alternatives and notifies the applicant that the agency retains discretion to select any reasonable alternative or the no action alternative regardless of any potential prior activity taken by the applicant prior to the conclusion of the NEPA process. (c) While work on a programmatic environmental review is in progress and the action is not covered by an existing programmatic review, agencies shall not E:\FR\FM\31JYP3.SGM 31JYP3 49982 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules undertake in the interim any major Federal action covered by the program that may significantly affect the quality of the human environment unless such action: (1) Is justified independently of the program; (2) Is itself accompanied by an adequate environmental review; and (3) Will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit alternatives. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1506.2 Elimination of duplication with State, Tribal, and local procedures. (a) Federal agencies are authorized to cooperate with State, Tribal, and local agencies that are responsible for preparing environmental documents, including those prepared pursuant to section 102(2)(G) of NEPA. (b) To the fullest extent practicable unless specifically prohibited by law, agencies shall cooperate with State, Tribal, and local agencies to reduce duplication between NEPA and State, Tribal, and local requirements, including through use of studies, analysis, and decisions developed by State, Tribal, or local agencies. Except for cases covered by paragraph (a) of this section, such cooperation shall include, to the fullest extent practicable: (1) Joint planning processes. (2) Joint environmental research and studies. (3) Joint public hearings (except where otherwise provided by statute). (4) Joint environmental assessments. (c) To the fullest extent practicable unless specifically prohibited by law, agencies shall cooperate with State, Tribal, and local agencies to reduce duplication between NEPA and comparable State, Tribal, and local requirements. Such cooperation shall include, to the fullest extent practicable, joint environmental impact statements. In such cases, one or more Federal agencies and one or more State, Tribal, or local agencies shall be joint lead agencies. Where State or Tribal laws or local ordinances have environmental impact statement or similar requirements in addition to but not in conflict with those in NEPA, Federal agencies may cooperate in fulfilling these requirements, as well as those of Federal laws, so that one document will comply with all applicable laws. (d) To better integrate environmental impact statements into State, Tribal, or local planning processes, environmental impact statements shall discuss any inconsistency of a proposed action with any approved State, Tribal, or local plan VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 or law (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law. While the statement should discuss any inconsistencies, NEPA does not require reconciliation. § 1506.3 Adoption. (a) Generally. An agency may adopt a draft or final environmental impact statement, environmental assessment, or portion thereof, or categorical exclusion determination, consistent with this section. (b) Environmental impact statements. An agency may adopt a draft or final environmental impact statement, or portion thereof, provided that the adopting agency conducts an independent review of the statement and concludes that it meets the standards for an adequate statement, pursuant to the regulations in this subchapter and the adopting agency’s NEPA procedures. (1) If the actions covered by the original environmental impact statement and the proposed action are substantially the same, the adopting agency shall republish and file it as a final statement consistent with § 1506.9 of this subchapter. If the actions are not substantially the same or the adopting agency determines that the statement requires supplementation, the adopting agency shall treat the statement as a draft, supplement or reevaluate it as necessary, and republish and file it, consistent with § 1506.9 of this subchapter. (2) Notwithstanding paragraph (b)(1) of this section, if a cooperating agency does not issue a record of decision jointly or concurrently consistent with § 1505.2 of this subchapter, a cooperating agency may issue a record of decision adopting the environmental impact statement of a lead agency without republication. (c) Environmental assessments. An agency may adopt an environmental assessment, or portion thereof, if the actions covered by the original environmental assessment and the proposed action are substantially the same, and the assessment meets the standards for an adequate environmental assessment under the regulations in this subchapter and the adopting agency’s NEPA procedures. If the actions are not substantially the same or the adopting agency determines that the environmental assessment requires supplementation, the adopting agency may adopt the environmental assessment, and supplement or reevaluate it as necessary, in its finding PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 of no significant impact and provide notice consistent with § 1501.6 of this subchapter. (d) Categorical exclusion determinations. An agency may adopt another agency’s determination that a categorical exclusion applies to a particular proposed action if the action covered by that determination and the adopting agency’s proposed action are substantially the same. (1) The adopting agency shall document its adoption, including the determination that its proposed action is substantially the same as the action covered by the original categorical exclusion determination and that there are no extraordinary circumstances present that require the preparation of an environmental assessment or environmental impact statement. (2) The adopting agency shall publish its adoption determination on an agency website or otherwise make it publicly available. (e) Identification of certain circumstances. The adopting agency shall specify if one of the following circumstances is present: (1) The agency is adopting an environmental assessment or environmental impact statement that is not final within the agency that prepared it. (2) The action assessed in the environmental assessment or environmental impact statement is the subject of a referral under part 1504 of this subchapter. (3) The environmental assessment or environmental impact statement’s adequacy is the subject of a judicial action that is not final. § 1506.4 Combining documents. Agencies should combine, to the fullest extent practicable, any environmental document with any other agency document to reduce duplication and paperwork. § 1506.5 Agency responsibility for environmental documents. (a) The agency is responsible for the accuracy, scope (§ 1501.3(b) of this subchapter), and content of environmental documents and shall ensure they are prepared with professional and scientific integrity, using reliable data and resources, regardless of whether they are prepared by the agency or a contractor under the supervision of the agency or by the applicant or project sponsor under procedures the agency adopts pursuant to section 107(f) of NEPA and § 1507.3(c)(1) of this subchapter. The agency shall exercise its independent judgment and briefly document its E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules determination that an environmental document meets the standards under NEPA, the regulations in this subchapter, and the agency’s NEPA procedures. (b) An agency may require an applicant to submit environmental information for possible use by the agency in preparing an environmental document. An agency also may authorize a contractor to prepare an environmental assessment or environmental impact statement under the supervision of the agency and may authorize a contractor to draft a finding of no significant impact or record of decision, but the agency is responsible for its accuracy, scope, and contents. (1) The agency should assist the applicant by outlining the types of information required for the preparation of environmental documents. The agency shall provide guidance to the contractor and participate in and supervise the document’s preparation. (2) The agency shall independently evaluate the information submitted and the environmental document and shall be responsible for their accuracy, scope, and contents, and document its evaluation in the environmental document. (3) The agency shall include in the environmental document the names and qualifications of the persons preparing environmental documents, and conducting the independent evaluation of any information submitted or environmental documents prepared by a contractor, such as in the list of preparers for environmental impact statements (§ 1502.18 of this subchapter). It is the intent of this paragraph (b)(3) that acceptable work not be redone, but that it be verified by the agency. (4) The lead agency or cooperating agency, where appropriate, shall prepare a disclosure statement for the contractor’s execution specifying that the contractor has no financial or other interest in the outcome of the action. Such statement need not include privileged or confidential trade secrets or other confidential business information. (5) Nothing in this section is intended to prohibit an agency from requesting any person, including the applicant, to submit information to it or to prohibit any person from submitting information to an agency for use in preparing environmental documents. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 § 1506.6 [Reserved] § 1506.7 Further guidance. (a) The Council may provide further guidance concerning NEPA and its procedures. (b) To the extent that Council guidance issued prior to [EFFECTIVE DATE OF THE FINAL RULE] is in conflict with this subchapter, the provisions of this subchapter apply. § 1506.8 Proposals for legislation. (a) When developing legislation, agencies shall integrate the NEPA process for proposals for legislation significantly affecting the quality of the human environment with the legislative process of the Congress. Technical drafting assistance does not by itself constitute a legislative proposal. Only the agency that has primary responsibility for the subject matter involved will prepare a legislative environmental impact statement. (b) A legislative environmental impact statement is the detailed statement required by law to be included in an agency’s recommendation or report on a legislative proposal to Congress. A legislative environmental impact statement shall be considered part of the formal transmittal of a legislative proposal to Congress; however, it may be transmitted to Congress up to 30 days later to allow time for completion of an accurate statement that can serve as the basis for public and Congressional debate. The statement must be available in time for Congressional hearings and deliberations. (c) Preparation of a legislative environmental impact statement shall conform to the requirements of the regulations in this subchapter, except as follows: (1) There need not be a scoping process. (2) Agencies shall prepare the legislative statement in the same manner as a draft environmental impact statement and need not prepare a final statement unless any of the following conditions exist. In such cases, the agency shall prepare and publish the statements consistent with §§ 1503.1 of this subchapter and 1506.11: (i) A Congressional committee with jurisdiction over the proposal has a rule requiring both draft and final environmental impact statements. (ii) The proposal results from a study process required by statute (such as those required by the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.)). (iii) Legislative approval is sought for Federal or federally assisted construction or other projects that the agency recommends be located at PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 49983 specific geographic locations. For proposals requiring an environmental impact statement for the acquisition of space by the General Services Administration, a draft statement shall accompany the Prospectus or the 11(b) Report of Building Project Surveys to the Congress, and a final statement shall be completed before site acquisition. (iv) The agency decides to prepare draft and final statements. (d) Comments on the legislative statement shall be given to the lead agency, which shall forward them along with its own responses to the Congressional committees with jurisdiction. § 1506.9 Filing requirements. (a) Agencies shall file environmental impact statements together with comments and responses with the Environmental Protection Agency, Office of Federal Activities, consistent with the Environmental Protection Agency’s procedures. (b) Agencies shall file statements with the Environmental Protection Agency no earlier than they are also transmitted to participating agencies and made available to the public. The Environmental Protection Agency may issue guidelines to agencies to implement its responsibilities under this section and § 1506.10. (c) Agencies shall notify the Environmental Protection Agency when they adopt an environmental impact statement consistent with § 1506.3(b). § 1506.10 Timing of agency action. (a) The Environmental Protection Agency shall publish a notice in the Federal Register each week of the environmental impact statements filed since its prior notice. The minimum time periods set forth in this section are calculated from the date of publication of this notice. (b) Unless otherwise provided by law, including statutory provisions for combining a final environmental impact statement and record of decision, Federal agencies shall not make or issue a record of decision under § 1505.2 of this subchapter for the proposed action until the later of the following dates: (1) 90 days after publication of the notice described in paragraph (a) of this section for a draft environmental impact statement. (2) 30 days after publication of the notice described in paragraph (a) of this section for a final environmental impact statement. (c) An agency may make an exception to the rule on timing set forth in paragraph (b) of this section for a E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 49984 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules proposed action in the following circumstances: (1) Some agencies have formally established administrative review processes (e.g., appeals, objections, protests), which may be initiated prior to or after filing and publication of the final environmental impact statement with the Environmental Protection Agency, that allow other agencies or the public to raise issues about a decision and make their views known. In such cases where a real opportunity exists to alter the decision, the agency may make and record the decision at the same time it publishes the environmental impact statement. This means that the period for administrative review of the decision and the 30-day period set forth in paragraph (b)(2) of this section may run concurrently. In such cases, the environmental impact statement shall explain the timing and the public’s right of administrative review and provide notification consistent with § 1506.9; or (2) An agency engaged in rulemaking under the Administrative Procedure Act or other statute for the purpose of protecting the public health or safety may waive the time period in paragraph (b)(2) of this section, publish a decision on the final rule simultaneously with publication of the notice of the availability of the final environmental impact statement, and provide notification consistent with § 1506.10, as described in paragraph (a) of this section. (d) If an agency files the final environmental impact statement within 90 days of the filing of the draft environmental impact statement with the Environmental Protection Agency, the minimum 30-day and 90-day periods may run concurrently. However, subject to paragraph (e) of this section, agencies shall allow at least 45 days for comments on draft statements. (e) The lead agency may extend the minimum periods in paragraph (b) of this section and provide notification consistent with § 1506.10. Upon a showing by the lead agency of compelling reasons of national policy, the Environmental Protection Agency may reduce the minimum periods and, upon a showing by any other Federal agency of compelling reasons of national policy, also may extend the minimum periods, but only after consultation with the lead agency. The lead agency may modify the minimum periods when necessary to comply with other specific statutory requirements (§ 1507.3(d)(4) of this subchapter). Failure to file timely comments shall not be a sufficient reason for extending a period. If the lead agency does not concur with the extension of time, the VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 Environmental Protection Agency may not extend it for more than 30 days. When the Environmental Protection Agency reduces or extends any period it shall notify the Council. § 1506.11 Emergencies. Where emergency circumstances make it necessary to take an action with significant effects without observing the provisions of the regulations in this subchapter, the Federal agency taking the action should consult with the Council about alternative arrangements for compliance with section 102(2)(C) of NEPA. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Alternative arrangements do not waive the requirement to comply with the statute, but establish an alternative means for NEPA compliance. § 1506.12 reviews. Innovative approaches to NEPA (a) The Council may authorize an innovative approach to NEPA compliance that allows an agency to comply with the Act following procedures modified from the requirements of the regulations in this subchapter, to facilitate sound and efficient environmental review for actions to address extreme environmental challenges consistent with section 101 of NEPA. Examples of extreme environmental challenges may relate to sea level rise, increased wildfire risk, or bolstering the resilience of infrastructure to increased disaster risk due to climate change; water scarcity; degraded water or air quality; disproportionate and adverse effects on communities with environmental justice concerns; imminent or reasonably foreseeable loss of historic, cultural, or Tribal resources; species loss; and impaired ecosystem health. (b) The Council may approve an innovative approach if it is consistent with this section, and such approval does not waive the requirement to comply with the statute, but establishes an alternative means for NEPA compliance. (c) An agency request for an innovative approach shall: (1) Identify each provision of this subchapter from which the agency seeks a modification and how the innovative approach the agency proposes to ensure compliance with NEPA; (2) Explain the extreme environmental challenge the approach would address, why the alternative means are needed to address the challenge, and how the alternative PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 means would facilitate the sound and efficient environmental review; and (3) Consult with any potential cooperating agencies and include a summary of their comments. (d) The Council shall evaluate the agency’s request within 60 days to determine if it meets the requirements in this section. The Council may: (1) Approve the request for modification; (2) Approve the request for modification with revisions; or (3) Deny the request for modification. (e) The Council shall publish on its website any request for modification that it has approved, approved with revisions, or denied. § 1506.13 Effective date. The regulations in this subchapter apply to any NEPA process begun after [EFFECTIVE DATE OF THE FINAL RULE]. An agency may apply the regulations in this subchapter to ongoing activities and environmental documents begun before [EFFECTIVE DATE OF THE FINAL RULE]. PART 1507—AGENCY COMPLIANCE § 1507.1 Compliance. All agencies of the Federal Government shall comply with the regulations in this subchapter. It is the intent of these regulations to allow each agency flexibility in adapting its implementing procedures authorized by § 1507.3 to the requirements of other applicable laws. § 1507.2 Agency capability to comply. Each agency shall be capable (in terms of personnel and other resources) of complying with the requirements of NEPA and the regulations in this subchapter. Such compliance may include use of the resources of other agencies, applicants, and other participants in the NEPA process, but the agency using the resources shall itself have sufficient capability to evaluate what others do for it and account for the contributions of others. Agencies shall: (a) Agencies shall designate a senior agency official to be responsible for overall review of agency NEPA compliance, including resolving implementation issues, and a Chief Public Engagement Officer to be responsible for facilitating community engagement across the agency and, where appropriate, the provision of technical assistance to communities. (b) Fulfill the requirements of section 102(2)(A) of NEPA to utilize a systematic, interdisciplinary approach that will ensure the integrated use of the E:\FR\FM\31JYP3.SGM 31JYP3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules natural and social sciences and the environmental design arts in planning and in decision making that may have an impact on the human environment. (c) Identify methods and procedures required by section 102(2)(B) of NEPA to ensure that presently unquantified environmental amenities and values may be given appropriate consideration. (d) Prepare adequate environmental impact statements pursuant to section 102(2)(C) of NEPA and cooperate on the development of statements in the areas where the agency has jurisdiction by law or special expertise or is authorized to develop and enforce environmental standards. (e) Ensure environmental documents are prepared with professional integrity, including scientific integrity, consistent with section 102(2)(D) of NEPA. (f) Make use of reliable data and resources in carrying out their responsibilities under NEPA, consistent with section 102(2)(E) of NEPA. (g) Study, develop, and describe technically and economically feasible alternatives, consistent with section 102(2)(F) of NEPA. (h) Study, develop, and describe alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources, consistent with section 102(2)(H) of NEPA. (i) Comply with the requirement of section 102(2)(K) of NEPA that the agency initiate and utilize ecological information in the planning and development of resource-oriented projects. (j) Fulfill the requirements of sections 102(2)(I), 102(2)(J), and 102(2)(L), of NEPA, and Executive Order 11514, Protection and Enhancement of Environmental Quality, section 2, as amended by Executive Order 11991, Relating to Protection and Enhancement of Environmental Quality. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1507.3 Agency NEPA procedures. (a) The Council has determined that the categorical exclusions contained in agency NEPA procedures as of [EFFECTIVE DATE OF THE FINAL RULE] are consistent with this subchapter. (b) No more than 12 months after [EFFECTIVE DATE OF THE FINAL RULE], or 9 months after the establishment of an agency, whichever comes later, each agency shall develop or revise, as necessary, proposed procedures to implement the regulations in this subchapter, facilitate efficient decision making, and ensure that agencies make decisions in accordance with the policies and requirements of VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 the Act. When the agency is a department, it may be efficient for major subunits (with the consent of the department) to adopt their own procedures. (1) Each agency shall consult with the Council while developing or revising its proposed procedures and before publishing them in the Federal Register for comment. Agencies with similar programs should consult with each other and the Council to coordinate their procedures, especially for programs requesting similar information from applicants. (2) Agencies shall provide an opportunity for public review and review by the Council for conformity with the Act and the regulations in this subchapter before issuing their final procedures. The Council shall complete its review within 30 days of the receipt of the proposed final procedures. Once in effect, agencies shall publish their NEPA procedures and ensure that they are readily available to the public. Agencies shall continue to review their policies and procedures, in consultation with the Council, to revise them as necessary to ensure full compliance with the purposes and provisions of the Act. (3) The issuance or update of agency procedures is not subject to NEPA review under this subchapter. (c) Agency procedures shall: (1) Designate the major decision points for the agency’s programs and actions subject to NEPA, ensuring that the NEPA process begins at the earliest reasonable time, consistent with § 1501.2 of this subchapter, and aligns with the corresponding decision points; (2) Require that relevant environmental documents, comments, and responses be part of the record in rulemaking and adjudicatory proceedings; (3) Integrate the environmental review into the decision-making process by requiring that relevant environmental documents, comments, and responses accompany the proposal through existing agency review processes so that decision makers use them in making decisions; (4) Require that the alternatives considered by the decision maker are encompassed by the range of alternatives discussed in the relevant environmental documents and that the decision maker consider the alternatives described in the environmental documents. If another decision document accompanies the relevant environmental documents to the decision maker, agencies are encouraged to make available to the public before the decision is made any part of that PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 49985 document that relates to the comparison of alternatives; (5) Require the combination of environmental documents with other agency documents to facilitate sound and efficient decision making and avoid duplication, where consistent with applicable statutory requirements; (6) Include those procedures required by §§ 1501.2(b)(4) (assistance to applicants); (7) Include specific criteria for and identification of those typical classes of action that normally: (i) Require environmental impact statements; and (ii) Require environmental assessments but not necessarily environmental impact statements; (8) Establish categorical exclusions and identify extraordinary circumstances. When establishing new or revising existing categorical exclusions, agencies shall: (i) Identify when documentation of a determination that a categorical exclusion applies to a proposed action is required; (ii) Substantiate the proposed new or revised categorical exclusion with sufficient information to conclude that the category of actions does not have a significant effect, individually or in the aggregate, on the human environment and provide this substantiation in a written record that is made publicly available as part of the notice and comment process (§ 1507.3(b)(1) and (2)); and (iii) Describe how the agency will consider extraordinary circumstances in determining whether additional analysis in an environmental assessment or environmental impact statement is required; (9) Include a process for reviewing the agency’s categorical exclusions at least every 10 years; (10) Include a process for introducing a supplement to an environmental assessment or environmental impact statement into its formal administrative record, if such a record exists; (11) Explain where interested persons can get information or status reports on environmental impact statements, environmental assessments, and other elements of the NEPA process; and (12) Where applicable, include procedures to allow a project sponsor to prepare environmental assessments and environmental impact statements under the agency’s supervision consistent with § 1506.5 of this subchapter. (d) Agency procedures also may: (1) Identify activities or decisions that are not subject to NEPA; (2) Include processes for consideration of emergency actions that would not result in significant effects; E:\FR\FM\31JYP3.SGM 31JYP3 49986 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules (3) Include specific criteria for providing limited exceptions to the provisions of the regulations in this subchapter for classified proposals. These are proposed actions that are specifically authorized under criteria established by an Executive order or statute to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order or statute. Agencies may safeguard and restrict from public dissemination environmental assessments and environmental impact statements that address classified proposals in accordance with agencies’ own regulations applicable to classified information. Agencies should organize these documents so that classified portions are included as annexes, so that the agencies can make the unclassified portions available to the public; and (4) Provide for periods of time other than those presented in § 1506.10 of this subchapter when necessary to comply with other specific statutory requirements, including requirements of lead or cooperating agencies. ddrumheller on DSK120RN23PROD with PROPOSALS3 § 1507.4 Agency NEPA program information. (a) To allow agencies and the public to efficiently and effectively access information about NEPA reviews, agencies shall provide for agency websites or other information technology tools to make available documents, relevant notices, and other relevant information for use by agencies, applicants, and interested persons. The website or other such means of publication shall include the agency’s NEPA procedures, including those of subunits, and a list of environmental assessments and environmental impact statements that are in development and complete. As appropriate, agencies also should include: (1) Agency planning and other documents that guide agency management and provide for public involvement in agency planning processes; (2) Environmental documents; (3) Agency policy documents, orders, terminology, and explanatory materials regarding agency decision-making processes; (4) Agency planning program information, plans, and planning tools; and (5) A database searchable by geographic information, document status, document type, and project type. (b) Agencies shall provide for efficient and effective interagency coordination of their environmental program websites VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 and other information technology tools, such as use of shared databases or application programming interfaces, in their implementation of NEPA and related authorities. PART 1508—DEFINITIONS § 1508.1 Definitions. The following definitions apply to the regulations in this subchapter. Federal agencies shall use these terms uniformly throughout the Federal Government. (a) Act or NEPA means the National Environmental Policy Act, as amended (42 U.S.C. 4321, et seq.). (b) Affecting means will or may have an effect on. (c) Authorization means any license, permit, approval, finding, determination, or other administrative decision issued by an agency that is required or authorized under Federal law in order to implement a proposed action. (d) Categorical exclusion means a category of actions that an agency has determined, in its agency NEPA procedures (§ 1507.3 of this subchapter) or pursuant to § 1501.4(c) of this subchapter, normally does not have a significant effect on the human environment. (e) Cooperating agency means any Federal, State, Tribal, or local agency with jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal that has been designated by the lead agency. (f) Council means the Council on Environmental Quality established by title II of the Act. (g) Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and include the following: (1) Direct effects, which are caused by the action and occur at the same time and place. (2) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth-inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. (3) Cumulative effects, which are effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 person undertakes such other actions. Cumulative effects can result from actions with individually minor but collectively significant effects taking place over a period of time. (4) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, such as disproportionate and adverse effects on communities with environmental justice concerns, whether direct, indirect, or cumulative. Effects also include climate change-related effects, including the contribution of a proposed action and its alternatives to climate change, and the reasonably foreseeable effects of climate change on the proposed action and its alternatives. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effects will be beneficial. (h) Environmental assessment means a concise public document, for which a Federal agency is responsible, for an action that is not likely to have a significant effect or for which the significance of the effects is unknown (§ 1501.5 of this subchapter), that is used to support an agency’s determination of whether to prepare an environmental impact statement (part 1502 of this subchapter) or a finding of no significant impact (§ 1501.6 of this subchapter). (i) Environmental document means an environmental assessment, environmental impact statement, documented categorical exclusion determination, finding of no significant impact, record of decision, or notice of intent. (j) Environmental impact statement means a detailed written statement that is required by section 102(2)(C) of NEPA. (k) Environmental justice means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision making and other Federal activities that affect human health and the environment so that people: (1) Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and (2) Have equitable access to a healthy, sustainable, and resilient environment E:\FR\FM\31JYP3.SGM 31JYP3 ddrumheller on DSK120RN23PROD with PROPOSALS3 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices. (l) Environmentally preferable alternative means the alternative or alternatives that will best promote the national environmental policy as expressed in section 101 of NEPA. (m) Extraordinary circumstances are factors or circumstances that indicate a normally categorically excluded action may have a significant environmental effect. Examples of extraordinary circumstances include potential substantial effects on sensitive environmental resources, potential disproportionate and adverse effects on communities with environmental justice concerns, potential substantial effects associated with climate change, and potential adverse effects on historic properties or cultural resources. (n) Federal agency means all agencies of the Federal Government. It does not mean the Congress, the Judiciary, or the President, including the performance of staff functions for the President in his Executive Office. For the purposes of the regulations in this subchapter, Federal agency also includes States, units of general local government, and Tribal governments assuming NEPA responsibilities from a Federal agency pursuant to statute. (o) Finding of no significant impact means a document by a Federal agency briefly presenting the agency’s determination that and reasons why an action, not otherwise categorically excluded (§ 1501.4 of this subchapter), will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. (p) Human environment or environment means comprehensively the natural and physical environment and the relationship of present and future generations with that environment. (See also the definition of ‘‘effects’’ in paragraph (g) of this section.) (q) Joint lead agency means a Federal, State, Tribal, or local agency designated pursuant to § 1501.7(c) that shares the responsibilities of the lead agency for preparing the environmental impact statement or environmental assessment. (r) Jurisdiction by law means agency authority to approve, veto, or finance all or part of the proposal. (s) Lead agency means the Federal agency that proposes the agency action or is designated pursuant to § 1501.7(c) for preparing or having primary responsibility for preparing the environmental impact statement or environmental assessment. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 (t) Legislation means a bill or legislative proposal to Congress developed by a Federal agency, but does not include requests for appropriations or legislation recommended by the President. (u) Major Federal action or action means an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility. (1) Major Federal actions generally include: (i) Granting authorizations, including permits, licenses, rights-of-way, or other authorizations. (ii) Adoption of official policy, such as rules, regulations, and interpretations adopted under the Administrative Procedure Act, 5 U.S.C. 551 et seq., or other statutes; implementation of treaties and international conventions or agreements, including those implemented pursuant to statute or regulation; formal documents establishing an agency’s policies that will result in or substantially alter agency programs. (iii) Adoption of formal plans, such as official documents prepared or approved by Federal agencies, which prescribe alternative uses of Federal resources, upon which future agency actions will be based. (iv) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and related agency decisions allocating agency resources to implement a specific statutory program or executive directive. (v) Carrying out specific projects, such as construction or management activities. (vi) Providing financial assistance, including through grants, cooperative agreements, loans, loan guarantees, or other forms of financial assistance, where the agency has the authority to deny in whole or in part the assistance due environmental effects, impose conditions on the receipt of the financial assistance to address environmental effects, or otherwise has sufficient control and responsibility over the subsequent use of the financial assistance or the effects of the activity for which the agency is providing the financial assistance. (2) Major Federal actions do not include the following: (i) Non-Federal actions: (A) With no or minimal Federal funding; or (B) With no or minimal Federal involvement where the Federal agency cannot control the outcome of the project; PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 49987 (ii) Funding assistance solely in the form of general revenue sharing funds that do not provide Federal agency compliance or enforcement responsibility over the subsequent use of such funds; (iii) Loans, loan guarantees, or other forms of financial assistance where a Federal agency does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effects of the action; (iv) Business loan guarantees provided by the Small Business Administration pursuant to section 7(a) or (b) and of the Small Business Act (15 U.S.C. 636(a) and (b)), or title V of the Small Business Investment Act of 1958 (15 U.S.C. 695 through 697g); (v) Judicial or administrative civil or criminal enforcement actions; (vi) Extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside of the jurisdiction of the United States; (vii) Activities or decisions that are non-discretionary and made in accordance with the agency’s statutory authority; (viii) Activities or decisions that are not a final agency action within the meaning of such term under the Administrative Procedure Act; and (ix) Activities or decisions for projects approved by a Tribal Nation that occur on or involve land held in trust or restricted status by the United States for the benefit of that Tribal Nation or by the Tribal Nation when such activities or decisions involve no Federal funding or other Federal involvement. (v) Matter includes for purposes of part 1504 of this subchapter: (1) With respect to the Environmental Protection Agency, any proposed legislation, project, action, or regulation as those terms are used in section 309(a) of the Clean Air Act (42 U.S.C. 7609). (2) With respect to all other agencies, any proposed major Federal action to which section 102(2)(C) of NEPA applies. (w) Mitigation means measures that avoid, minimize, or compensate for effects caused by a proposed action or alternatives as described in an environmental document or record of decision and that have a connection to those effects. Mitigation includes, in general order of priority: (1) Avoiding the effect altogether by not taking a certain action or parts of an action. (2) Minimizing effects by limiting the degree or magnitude of the action and its implementation. E:\FR\FM\31JYP3.SGM 31JYP3 49988 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS3 (3) Rectifying the effect by repairing, rehabilitating, or restoring the affected environment. (4) Reducing or eliminating the effect over time by preservation and maintenance operations during the life of the action. (5) Compensating for the effect by replacing or providing substitute resources or environments. (x) NEPA process means all measures necessary for compliance with the requirements of section 2 and title I of NEPA. (y) Notice of intent means a public notice that an agency will prepare and consider an environmental impact statement or environmental assessment, as applicable. (z) Page means 500 words and does not include citations, explanatory maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information. (aa) Participating agency means a Federal, State, Tribal, or local agency participating in an environmental review or authorization of an action. (bb) Participating Federal agency means a Federal agency participating in an environmental review or authorization of an action. VerDate Sep<11>2014 19:24 Jul 28, 2023 Jkt 259001 (cc) Programmatic environmental document means an environmental impact statement or environmental assessment analyzing all or some of the environmental effects of a policy, program, plan, or group of related actions. (dd) Proposal means a proposed action at a stage when an agency has a goal, is actively preparing to make a decision on one or more alternative means of accomplishing that goal, and can meaningfully evaluate its effects. A proposal may exist in fact as well as by agency declaration that one exists. (ee) Publish and publication mean methods found by the agency to efficiently and effectively make environmental documents and information available for review by interested persons, including electronic publication, and adopted by agency NEPA procedures pursuant to § 1507.3 of this subchapter. (ff) Reasonable alternatives means a reasonable range of alternatives that are technically and economically feasible, and meet the purpose and need for the proposed action. (gg) Reasonably foreseeable means sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision. PO 00000 Frm 00066 Fmt 4701 Sfmt 9990 (hh) Referring agency means the Federal agency that has referred any matter to the Council after a determination that the matter is unsatisfactory from the standpoint of public health or welfare or environmental quality. (ii) Scope consists of the range and breadth of actions, alternatives, and effects to be considered in an environmental impact statement or environmental assessment. (jj) Senior agency official means an official of assistant secretary rank or higher (or equivalent) that is designated for overall agency NEPA compliance, including resolving implementation issues. (kk) Significant effects means adverse effects that an agency has identified as significant based on the criteria in § 1501.3(d) of this subchapter. (ll) Special expertise means statutory responsibility, agency mission, or related program experience. (mm) Tiering refers to the process described in § 1501.11 of this subchapter. § 1508.2 [Reserved] [FR Doc. 2023–15405 Filed 7–28–23; 8:45 am] BILLING CODE 3325–F3–P E:\FR\FM\31JYP3.SGM 31JYP3

Agencies

COUNCIL ON ENVIRONMENTAL QUALITY

[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Proposed Rules]
[Pages 49924-49988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15405]



[[Page 49923]]

Vol. 88

Monday,

No. 145

July 31, 2023

Part III





Council on Environmental Quality





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40 CFR Parts 1500, 1501, 1502, et al.





National Environmental Policy Act Implementing Regulations Revisions 
Phase 2; Proposed Rule

Federal Register / Vol. 88 , No. 145 / Monday, July 31, 2023 / 
Proposed Rules

[[Page 49924]]


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COUNCIL ON ENVIRONMENTAL QUALITY

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

[CEQ-2023-0003]
RIN 0331-AA07


National Environmental Policy Act Implementing Regulations 
Revisions Phase 2

AGENCY: Council on Environmental Quality.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Council on Environmental Quality (CEQ) is proposing this 
``Bipartisan Permitting Reform Implementation Rule'' to revise its 
regulations for implementing the procedural provisions of the National 
Environmental Policy Act (NEPA), including to implement the Fiscal 
Responsibility Act's amendments to NEPA. CEQ proposes the revisions to 
provide for an effective environmental review process that promotes 
better decision making; ensure full and fair public involvement; 
provide for an efficient process and regulatory certainty; and provide 
for sound decision making grounded in science, including consideration 
of relevant environmental, climate change, and environmental justice 
effects. CEQ proposes these changes to better align the provisions with 
CEQ's extensive experience implementing NEPA; CEQ's perspective on how 
NEPA can best inform agency decision making; longstanding Federal 
agency experience and practice; NEPA's statutory text and purpose, 
including making decisions informed by science; and case law 
interpreting NEPA's requirements. CEQ invites comments on the proposed 
revisions.

DATES: 
    Comments: CEQ must receive comments by September 29, 2023.
    Public meetings: CEQ will conduct four virtual public meetings for 
the proposed rule on Saturday, August 26, 2023, from 1 p.m. to 4 p.m. 
EDT; Wednesday, August 30, 2023, from 5 p.m. to 8 p.m. EDT; Monday, 
September 11, 2023, from 1 p.m. to 4 p.m. EDT; and Thursday, September 
21, 2023, from 2 p.m. to 5 p.m. EDT. For additional information and to 
register for the meetings, please visit CEQ's website at www.nepa.gov.

ADDRESSES: You may submit comments, identified by docket number CEQ-
2023-0003, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-456-6546.
     Mail: Council on Environmental Quality, 730 Jackson Place 
NW, Washington, DC 20503.
    Instructions: All submissions received must include the agency 
name, ``Council on Environmental Quality,'' and docket number, CEQ-
2023-0003, for this rulemaking. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided. Please do not submit electronically any 
information you consider private, Confidential Business Information 
(CBI), or other information, the disclosure of which is restricted by 
statute.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel, 
202-395-5750, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

A. NEPA Statute

    Congress enacted NEPA in 1969 by a unanimous vote in the Senate and 
a nearly unanimous vote in the House to declare an ambitious and 
visionary national policy to promote environmental protection for 
present and future generations.\1\ President Nixon signed NEPA into law 
on January 1, 1970. NEPA seeks to ``encourage productive and enjoyable 
harmony'' between humans and the environment, recognizing the 
``profound impact'' of human activity and the ``critical importance of 
restoring and maintaining environmental quality'' to the overall 
welfare of humankind. 42 U.S.C. 4321, 4331.
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    \1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National 
Environmental Policy Act: Background and Implementation, 4 (2008), 
https://crsreports.congress.gov/product/details?prodcode=RL33152.
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    Furthermore, NEPA seeks to promote efforts that will prevent or 
eliminate damage to the environment and biosphere and stimulate the 
health and welfare of people, making it the continuing policy of the 
Federal Government to use all practicable means and measures to create 
and maintain conditions under which humans and nature can exist in 
productive harmony and fulfill the social, economic, and other 
requirements of present and future generations of Americans. 42 U.S.C. 
4331(a). It also recognizes that each person should have the 
opportunity to enjoy a healthy environment and has a responsibility to 
contribute to the preservation and enhancement of the environment. 42 
U.S.C. 4331(c).
    NEPA requires Federal agencies to interpret and administer Federal 
policies, regulations, and laws in accordance with NEPA's policies and 
to consider environmental values in their decision making. 42 U.S.C. 
4332. To that end, section 102(2)(C) of NEPA requires Federal agencies 
to prepare ``detailed statements,'' referred to as environmental impact 
statements (EISs), for ``every recommendation or report on proposals 
for legislation and other major Federal actions significantly affecting 
the quality of the human environment'' and, in doing so, provide 
opportunities for public participation to help inform agency decision 
making. 42 U.S.C. 4332(2)(C). The EIS process embodies the 
understanding that informed decisions are better decisions and lead to 
better environmental outcomes when decision makers understand, 
consider, and publicly disclose environmental effects of their 
decisions. The EIS process also enriches understanding of the 
ecological systems and natural resources important to the Nation and 
helps guide sound decision making, such as decisions on infrastructure 
and energy development, in line with high-quality information, 
including the best available science, information and data, as well as 
the environmental design arts.
    In many respects, NEPA was a statute ahead of its time and remains 
relevant and vital today. It codifies the common-sense idea of ``look 
before you leap'' to guide agency decision making, particularly in 
complex and consequential areas, because conducting sound environmental 
analysis before agencies take actions reduces conflict and waste in the 
long run by avoiding unnecessary harm and uninformed decisions. See, 
e.g., 42 U.S.C. 4332. It establishes a framework for agencies to ground 
decisions in sound science and recognizes that the public may have 
important ideas and information on how Federal actions can occur in a 
manner that reduces potential harms and enhances ecological, social, 
and economic well-being. See, e.g., id.
    On June 3, 2023, President Biden signed the Fiscal Responsibility 
Act of 2023 (FRA) into law, which included amendments to NEPA. 
Specifically, the FRA amended section 102(2)(C) and added sections 
102(2)(D) through (F) and sections 106 through 111. The amendments in 
section 102(2)(C) largely codify longstanding principles that EISs

[[Page 49925]]

should include discussion of reasonably foreseeable environmental 
effects of the proposed action, reasonably foreseeable adverse 
environmental effects that cannot be avoided, and a reasonable range of 
alternatives to the proposed action. Section 102(2)(D) requires Federal 
agencies to ensure the professional integrity of the discussion and 
analysis in an environmental document; section 102(2)(E) requires use 
of reliable data and resources when carrying out NEPA; and section 
102(2)(F) requires agencies to study, develop, and describe technically 
and economically feasible alternatives.
    Section 106 adds provisions for determining the appropriate level 
of NEPA review. It clarifies that an agency is only required to prepare 
an environmental document when proposing to take an action that would 
constitute a final agency action and codifies existing regulations and 
caselaw that an agency is not required to prepare an environmental 
document when doing so would clearly and fundamentally conflict with 
the requirements of another law or a proposed action is non-
discretionary. Section 106 also largely codifies the current CEQ 
regulations and longstanding practice with respect to the use of 
categorical exclusions (CEs), environmental assessments (EAs), and 
EISs, as modified by the new provision expressly permitting agencies to 
adopt CEs from other agencies established in section 109 of NEPA.
    Section 107 addresses timely and unified Federal reviews, codifying 
existing practice with a few minor adjustments, including provisions 
clarifying lead, joint-lead, and cooperating agency designation, 
generally requiring development of a single environmental document, 
directing agencies to develop procedures for project sponsors to 
prepare EAs and EISs, and prescribing page limits and deadlines similar 
to current requirements. Section 108 codifies time lengths and 
circumstances for when agencies can rely on programmatic environmental 
documents without additional review, and section 109 allows a Federal 
agency to use another agency's CE. Section 111 adds a variety of 
definitions. This proposed rule would update the regulations to address 
how agencies should implement NEPA consistent with the amendments made 
by the FRA.

B. The Council on Environmental Quality

    NEPA established the Council on Environmental Quality (CEQ) in the 
Executive Office of the President. 42 U.S.C. 4342. For more than 50 
years, CEQ has advised presidents on national environmental policy, 
assisted Federal agencies in their implementation of NEPA, and overseen 
implementation of a variety of other environmental initiatives from the 
expeditious and thorough environmental review of infrastructure 
projects \2\ to the sustainability of Federal operations.\3\
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    \2\ See, e.g., E.O. 14008, Tackling the Climate Crisis at Home 
and Abroad, 86 FR 7619 (Feb. 1, 2021); E.O. 13604, Improving 
Performance of Federal Permitting and Review of Infrastructure 
Projects, 77 FR 18885 (Mar. 28, 2012); E.O. 13274, Environmental 
Stewardship and Transportation Infrastructure Project Reviews, 67 FR 
59449 (Sept. 23, 2002); see also Modernizing Federal Infrastructure 
Review and Permitting Regulations, Policies, and Procedures, 78 FR 
30733 (May 22, 2013).
    \3\ See, e.g., E.O. 14057, Catalyzing Clean Energy Industries 
and Jobs Through Federal Sustainability, 86 FR 70935 (Dec. 13, 
2021); E.O. 13834, Efficient Federal Operations, 83 FR 23771 (May 
22, 2018); E.O. 13693, Planning for Federal Sustainability in the 
Next Decade, 80 FR 15869 (Mar. 25, 2015); E.O. 13514, Federal 
Leadership in Environmental, Energy, and Economic Performance, 74 FR 
52117 (Oct. 8, 2009); E.O. 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management, 72 FR 3919 
(Jan. 26, 2007); E.O. 13101, Greening the Government Through Waste 
Prevention, Recycling, and Federal Acquisition, 63 FR 49643 (Sept. 
16, 1998). For Presidential directives pertaining to other 
environmental initiatives, see E.O. 13432, Cooperation Among 
Agencies in Protecting the Environment With Respect to Greenhouse 
Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad 
Engines, 72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to 
implement the E.O. and facilitate Federal agency cooperation to 
reduce greenhouse gas emissions); E.O. 13141, Environmental Review 
of Trade Agreements, 64 FR 63169 (Nov. 18, 1999) (requiring CEQ and 
the U.S. Trade Representative to implement the E.O., which has the 
purpose of promoting Trade agreements that contribute to sustainable 
development); E.O. 13061, Federal Support of Community Efforts Along 
American Heritage Rivers, 62 FR 48445 (Sept. 15, 1997) (charging CEQ 
with implementing the American Heritage Rivers initiative); E.O. 
13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75 
FR 43023 (Jul. 22, 2010) (directing CEQ to lead the National Ocean 
Council); E.O. 13112, Invasive Species, 64 FR 6183 (Feb. 8, 1999) 
(requiring the Invasive Species Council to consult with CEQ to 
develop guidance to Federal agencies under NEPA on prevention and 
control of invasive species).
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    NEPA charges CEQ with overseeing and guiding NEPA implementation 
across the Federal Government. In addition to issuing the regulations 
for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to 
throughout as ``the CEQ regulations''), CEQ has issued guidance on 
numerous topics related to NEPA review. In 1981, CEQ issued the ``Forty 
Most Asked Questions Concerning CEQ's National Environmental Policy Act 
Regulations,'' \4\ which CEQ has routinely identified as an invaluable 
tool for Federal, Tribal, State, and local governments and officials, 
and members of the public, who have questions about NEPA 
implementation.
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    \4\ CEQ, Forty Most Asked Questions Concerning CEQ's National 
Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981) 
(``Forty Questions''), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.
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    CEQ also has issued guidance on a variety of other topics, from 
scoping to cooperating agencies to consideration of effects.\5\ For 
example, in 1997, CEQ issued guidance documents on the consideration of 
environmental justice in the NEPA context \6\ under Executive Order 
(E.O.) 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations,⁷ and on 
analysis of cumulative effects in NEPA reviews,\8\ two documents that 
agencies continue to use today. From 2010 to the present, CEQ developed 
additional guidance on CEs, mitigation, programmatic reviews, and 
consideration of greenhouse gas (GHG) emissions in NEPA.\9\ To ensure

[[Page 49926]]

coordinated environmental review, CEQ has issued guidance to integrate 
NEPA reviews with other environmental review requirements such as the 
National Historic Preservation Act, E.O. 11988, Floodplain Management, 
and E.O. 11990, Protection of Wetlands.\10\ Finally, CEQ has provided 
guidance to ensure efficient and effective environmental reviews, 
particularly for infrastructure projects.\11\
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    \5\ See, e.g., CEQ, Memorandum for General Counsels, NEPA 
Liaisons and Participants in Scoping (Apr. 30, 1981), https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping; CEQ, Incorporating 
Biodiversity Considerations Into Environmental Impact Analysis Under 
the National Environmental Policy Act (Jan. 1993), https://ceq.doe.gov/publications/incorporating_biodiversity.html; CEQ, 
Council on Environmental Quality Guidance on NEPA Analyses for 
Transboundary Impacts (July 1, 1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf; CEQ, Designation of Non-Federal Agencies to be 
Cooperating Agencies in Implementing the Procedural Requirements of 
the National Environmental Policy Act (July 28, 1999), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf; CEQ, 
Identifying Non-Federal Cooperating Agencies in Implementing the 
Procedural Requirements of the National Environmental Policy Act 
(Sept. 25, 2000), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf; CEQ & 
DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12, 
2003), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf.
    \6\ CEQ, Environmental Justice: Guidance under the National 
Environmental Policy Act (Dec. 10, 1997) (``Environmental Justice 
Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
    \7\ E.O. 12898, Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 
16, 1994).
    \8\ CEQ, Considering Cumulative Effects Under the National 
Environmental Policy Act (Jan. 1997), https://ceq.doe.gov/publications/cumulative_effects.html; see also CEQ, Guidance on the 
Consideration of Past Actions in Cumulative Effects Analysis (June 
24, 2005), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf.
    \9\ CEQ, Establishing, Applying, and Revising Categorical 
Exclusions Under the National Environmental Policy Act (Nov. 23, 
2010) (``CE Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; CEQ, Appropriate Use of 
Mitigation and Monitoring and Clarifying the Appropriate Use of 
Mitigated Findings of No Significant Impact (Jan. 14, 2011), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; CEQ, National 
Environmental Policy Act Guidance on Consideration of Greenhouse Gas 
Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (``2023 GHG 
Guidance''), https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html.
    \10\ CEQ, Implementation of Executive Order 11988 on Floodplain 
Management and Executive Order 11990 on Protection of Wetlands (Mar. 
21, 1978), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-EO-11988-and-EO-11990-032178.pdf; CEQ & 
Advisory Council on Historic Preservation, NEPA and NHPA: A Handbook 
for Integrating NEPA and Section 106 (Mar. 2013), https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf.
    \11\ See, e.g., CEQ, Improving the Process for Preparing 
Efficient and Timely Environmental Reviews Under the National 
Environmental Policy Act (Mar. 6, 2012), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; CEQ, Effective Use of 
Programmatic NEPA Reviews (Dec. 18, 2014) (``Programmatic 
Guidance''), https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf; OMB & CEQ, 
M-15-20, Guidance Establishing Metrics for the Permitting and 
Environmental Review of Infrastructure Projects (Sept. 22, 2015), 
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf; OMB & CEQ, M-17-14, Guidance to 
Federal Agencies Regarding the Environmental Review and 
Authorization Process for Infrastructure Projects (Jan. 13, 2017), 
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf.
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    In addition to guidance, CEQ engages frequently with Federal 
agencies on their implementation of NEPA. First, CEQ is responsible for 
consulting with all agencies on the development of their NEPA 
implementing procedures and determining that those procedures conform 
with NEPA and the CEQ regulations. Through this process, CEQ engages 
with agencies to understand their specific authorities and programs to 
ensure agencies integrate consideration of environmental effects into 
their decision-making processes. Additionally, CEQ provides feedback 
and recommendations on how agencies may effectively implement NEPA 
through their procedures.
    Second, CEQ consults with agencies on the efficacy and 
effectiveness of NEPA implementation. Where necessary or appropriate, 
CEQ engages with agencies on NEPA reviews for specific projects or 
project types to provide advice and identify any emerging or cross-
cutting issues that would benefit from CEQ issuing formal guidance or 
assisting with coordination. This includes establishing alternative 
arrangements for compliance with NEPA when agencies encounter emergency 
situations where they need to act swiftly while also ensuring they meet 
their NEPA obligations. CEQ also advises on NEPA compliance when 
agencies are establishing new programs or implementing new statutory 
authorities. Finally, CEQ helps advance the environmental review 
process for projects or initiatives deemed important to an 
administration such as nationally and regionally significant projects, 
major infrastructure projects, and consideration of climate change-
related effects and effects on communities with environmental justice 
concerns.\12\
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    \12\ See, e.g., Memorandum from President Barack Obama to the 
Heads of Executive Departments and Agencies, Speeding Infrastructure 
Development through More Efficient and Effective Permitting and 
Environmental Review (Aug. 31, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more; E.O. 13807, Establishing Discipline and Accountability in the 
Environmental Review and Permitting Process for Infrastructure 
Projects, 82 FR 40463 (Aug. 24, 2017).
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    Third, CEQ meets regularly with external stakeholders to understand 
their perspectives on the NEPA process. These meetings can help inform 
CEQ's development of guidance or other initiatives and engagement with 
Federal agencies. Finally, CEQ coordinates with other Federal agencies 
and components of the White House on a wide array of environmental 
issues and reviews that intersect with the NEPA process, such as 
Endangered Species Act consultation or effects to Federal lands and 
waters from federally authorized activities.
    In addition to its NEPA responsibilities, CEQ is currently charged 
with implementing several of the administration's key environmental 
priorities. On January 27, 2021, the President signed E.O. 14008, 
Tackling the Climate Crisis at Home and Abroad, to establish a 
government-wide approach to the climate crisis by reducing GHG 
emissions across the economy; increasing resilience to climate change-
related effects; conserving land, water, and biodiversity; 
transitioning to a clean-energy economy; advancing environmental 
justice; and investing in disadvantaged communities.\13\ CEQ is leading 
the President's efforts to secure environmental justice consistent with 
sections 219 through 223 of the E.O.\14\ For example, CEQ has developed 
the Climate and Economic Justice Screening Tool \15\ and collaborates 
with the Office of Management and Budget (OMB) and the National Climate 
Advisor on implementing the Justice40 initiative, which sets a goal 
that 40 percent of the overall benefits of certain Federal investments 
flow to disadvantaged communities.\16\
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    \13\ E.O. 14008, supra note 2.
    \14\ E.O. 14008's direction to advance environmental justice 
reinforces and reflects longstanding policy established in E.O. 
12898 and advances the related though distinct policy defined more 
broadly in E.O. 13985, Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government, that the 
Federal Government ``pursue a comprehensive approach to advancing 
equity for all, including people of color and others who have been 
historically underserved, marginalized, and adversely affected by 
persistent poverty and inequality.'' 86 FR 7009 (Jan. 25, 2021), 
sec. 1.
    \15\ CEQ, Explore the Map, Climate and Economic Justice 
Screening Tool, https://screeningtool.geoplatform.gov/.
    \16\ E.O. 14008, supra note 2, sec. 223.
---------------------------------------------------------------------------

    Section 205 of the E.O. also charged CEQ with developing the 
Federal Sustainability Plan, a directive that was augmented by E.O. 
14057, Catalyzing Clean Energy Industries and Jobs Through Federal 
Sustainability,\17\ to achieve a carbon pollution-free electricity 
sector and clean and zero-emission vehicle fleets. CEQ also is 
collaborating with the Departments of the Interior, Agriculture, and 
Commerce on the implementation of the America the Beautiful 
Initiative.\18\ Additionally, E.O. 14008 requires the Chair of CEQ and 
the Director of OMB to ensure that Federal permitting decisions 
consider the effects of GHG emissions and climate change.\19\
---------------------------------------------------------------------------

    \17\ E.O. 14057, supra note 3.
    \18\ E.O. 14008, supra note 2.
    \19\ Id. at sec. 213(a); see also id., sec. 219 (directing 
agencies to ``make achieving environmental justice part of their 
missions by developing programs, policies, and activities to address 
the disproportionately high and adverse human health, environmental, 
climate-related and other cumulative impacts on disadvantaged 
communities'').
---------------------------------------------------------------------------

    CEQ is also instrumental to the President's efforts to institute a 
government-wide approach to advancing environmental justice. On April 
21, 2023, the President signed E.O. 14096, Revitalizing Our Nation's 
Commitment to Environmental Justice for All, to further embed 
environmental justice into the work of Federal agencies and ensure that 
all people can benefit from the vital safeguards enshrined in the 
Nation's foundational environmental and civil rights laws.\20\

[[Page 49927]]

The E.O. charges each agency with making achieving environmental 
justice part of its mission consistent with statutory authority,\21\ 
and requires each agency to submit to the Chair of CEQ and make 
publicly available an Environmental Strategic Plan setting forth the 
agency's goals and plans for advancing environmental justice.\22\ 
Further, section 8 of the E.O. establishes a White House Office of 
Environmental Justice within CEQ.
---------------------------------------------------------------------------

    \20\ E.O. 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023). E.O. 
14096 builds upon efforts to advance environmental justice and 
equity consistent with the policy advanced in documents including 
E.O. 13985, E.O. 14008, and E.O. 12898. See, e.g., note 14, supra.
    \21\ E.O. 14096, supra note 20, sec. 3.
    \22\ Id. at sec. 4.
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    Finally, CEQ is staffed with experts with decades of NEPA 
experience. CEQ's diverse array of responsibilities and expertise has 
long influenced the implementation of NEPA, and CEQ relied extensively 
on this experience in developing this rulemaking.

C. NEPA Implementation 1970-2019

    Following shortly after the enactment of NEPA, President Nixon 
issued E.O. 11514, Protection and Enhancement of Environmental Quality, 
directing CEQ to issue guidelines for implementation of section 
102(2)(C) of NEPA.\23\ In response, CEQ in April 1970 issued interim 
guidelines, which addressed the provisions of section 102(2)(C) of the 
Act regarding EIS requirements.\24\ CEQ revised the guidelines in 1971 
and 1973 to address public involvement and introduce the concepts of 
EAs and draft and final EISs.\25\
---------------------------------------------------------------------------

    \23\ E.O. 11514, Protection and Enhancement of Environmental 
Quality, 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
    \24\ See Statements on Proposed Federal Actions Affecting the 
Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).
    \25\ Statements on Proposed Federal Actions Affecting the 
Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines); 
Preparation of Environmental Impact Statements, 38 FR 10856 (May 2, 
1973) (proposed revisions to the guidelines); Preparation of 
Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1, 
1973) (revised guidelines).
---------------------------------------------------------------------------

    In 1977, President Carter issued E.O. 11991, Relating to Protection 
and Enhancement of Environmental Quality, amending E.O. 11514 and 
directing CEQ to issue regulations for implementation of section 
102(2)(C) of NEPA and requiring that Federal agencies comply with those 
regulations.\26\ CEQ promulgated its NEPA regulations in 1978.\27\ 
Issued 8 years after NEPA's enactment, the NEPA regulations reflected 
CEQ's interpretation of the statutory text and Congressional intent, 
expertise developed through issuing and revising the CEQ guidelines and 
advising Federal agencies on their implementation of NEPA, initial 
interpretations of the courts, and Federal agency experience 
implementing NEPA. The 1978 regulations reflected the fundamental 
principles of informed and science-based decision making, transparency, 
and public engagement Congress established in NEPA. The regulations 
further required agency-level implementation, directing Federal 
agencies to issue and update periodically agency-specific implementing 
procedures to supplement CEQ's procedures and integrate the NEPA 
process into the agencies' specific programs and processes. Consistent 
with 42 U.S.C. 4332(2)(B), the regulations also required agencies to 
consult with CEQ in the development or update of these agency-specific 
procedures to ensure consistency with CEQ's regulations.
---------------------------------------------------------------------------

    \26\ E.O. 11991, Relating to Protection and Enhancement of 
Environmental Quality, 42 FR 26967 (May 25, 1977).
    \27\ Implementation of Procedural Provisions, 43 FR 55978 (Nov. 
29, 1978).
---------------------------------------------------------------------------

    CEQ made typographical amendments to the 1978 implementing 
regulations in 1979 \28\ and amended one provision in 1986 (CEQ refers 
to these regulations, as amended, as the ``1978 regulations'' in this 
preamble).\29\ Otherwise, CEQ left the regulations unchanged for over 
40 years. As a result, CEQ and Federal agencies developed extensive 
experience implementing the 1978 regulations, and a large body of 
agency practice and case law developed based on them.
---------------------------------------------------------------------------

    \28\ Implementation of Procedural Provisions; Corrections, 44 FR 
873 (Jan. 3, 1979).
    \29\ National Environmental Policy Act Regulations; Incomplete 
or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) (amending 40 
CFR 1502.22).
---------------------------------------------------------------------------

D. 2020 Amendments to the CEQ Regulations

    On August 15, 2017, President Trump issued E.O. 13807, Establishing 
Discipline and Accountability in the Environmental Review and 
Permitting Process for Infrastructure Projects,\30\ which directed CEQ 
to establish and lead an interagency working group to identify and 
propose changes to the NEPA regulations.\31\ In response, CEQ issued an 
advance notice of proposed rulemaking (ANPRM) on June 20, 2018,\32\ and 
a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing 
broad revisions to the 1978 regulations.\33\ A wide range of 
stakeholders submitted more than 12,500 comments on the ANPRM \34\ and 
1.1 million comments on the proposed rule,\35\ including from state and 
local governments, Tribes, environmental advocacy organizations, 
professional and industry associations, other advocacy or non-profit 
organizations, businesses, and private citizens. Many commenters 
provided detailed feedback on the legality, policy wisdom, and 
potential consequences of the proposed amendments. In keeping with the 
proposed rule, the final rule, promulgated on July 16, 2020 (``2020 
regulations'' or ``2020 rule''), made wholesale revisions to the 
regulations; it took effect on September 14, 2020.\36\
---------------------------------------------------------------------------

    \30\ E.O. 13807, supra note 12.
    \31\ Id., sec. 5(e)(iii).
    \32\ Update to the Regulations for Implementing the Procedural 
Provisions of the National Environmental Policy Act, 83 FR 28591 
(June 20, 2018).
    \33\ Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 1684 
(Jan. 10, 2020).
    \34\ See Docket No. CEQ-2018-0001, https://www.regulations.gov/document/CEQ-2018-0001-0001.
    \35\ See Docket No. CEQ-2019-0003, https://www.regulations.gov/document/CEQ-2019-0003-0001.
    \36\ Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 43304 
(July 16, 2020) (``2020 Final Rule'').
---------------------------------------------------------------------------

    In the months that followed the issuance of the 2020 regulations, 
five lawsuits were filed challenging the 2020 rule.\37\ These cases 
challenge the 2020 rule on a variety of grounds, including under the 
Administrative Procedure Act (APA), NEPA, and the Endangered Species 
Act, contending that the rule exceeded CEQ's authority and that the 
related rulemaking process was procedurally and substantively 
defective. In response to CEQ's motions and joint motions, the district 
courts issued temporary stays in each of these cases, except for Wild 
Virginia v. Council on Environmental Quality, which the district court 
dismissed without prejudice on June 21, 2021.\38\ The Fourth Circuit 
affirmed that dismissal on December 22, 2022.\39\
---------------------------------------------------------------------------

    \37\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D. 
Va. 2020); Env't Justice Health All. v. Council on Env't Quality, 
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v. 
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020); 
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal. 
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't 
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in The Clinch 
Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2020), 
plaintiffs challenged the U.S. Forest Service's NEPA implementing 
procedures, which established new categorical exclusions, and, 
relatedly, the 2020 rule's provisions on categorical exclusions.
    \38\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620 
(W.D. Va. 2021).
    \39\ Wild Va. v. Council on Env't Quality, 56 F.4th 281 (4th 
Cir. 2022).

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[[Page 49928]]

E. CEQ's Review of the 2020 Regulations

    On January 20, 2021, President Biden issued E.O. 13990, Protecting 
Public Health and the Environment and Restoring Science to Tackle the 
Climate Crisis,\40\ to establish an administration policy to listen to 
the science; improve public health and protect our environment; ensure 
access to clean air and water; limit exposure to dangerous chemicals 
and pesticides; hold polluters accountable, including those who 
disproportionately harm communities of color and low-income 
communities; reduce GHG emissions; bolster resilience to the impacts of 
climate change; restore and expand the Nation's treasures and 
monuments; and prioritize both environmental justice and the creation 
of well-paying union jobs necessary to achieve these goals.\41\ The 
Executive Order calls for Federal agencies to review existing 
regulations issued between January 20, 2017, and January 20, 2021, for 
consistency with the policy it articulates and to take appropriate 
action.\42\ The Executive Order also revokes E.O. 13807 and directs 
agencies to take steps to rescind any rules or regulations implementing 
it.\43\ An accompanying White House fact sheet, published on January 
20, 2021, specifically identified the 2020 regulations for CEQ's review 
for consistency with E.O. 13990's policy.\44\
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    \40\ 86 FR 7037 (Jan. 25, 2021).
    \41\ Id. at sec. 1.
    \42\ Id.
    \43\ Id. at sec. 7.
    \44\ The White House, Fact Sheet: List of Agency Actions for 
Review (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
---------------------------------------------------------------------------

    Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the 
2020 regulations and engaged in a multi-phase rulemaking process to 
ensure that the NEPA implementing regulations provide for sound and 
efficient environmental review of Federal actions, including those 
actions integral to tackling the climate crisis, in a manner that 
enables meaningful public participation, provides for an expeditious 
process, discloses climate change-related effects, advances 
environmental justice, respects Tribal sovereignty, protects our 
Nation's resources, and promotes better and more equitable 
environmental and community outcomes.
    First, CEQ issued an interim final rule on June 29, 2021, amending 
the requirement in 40 CFR 1507.3(b) for agencies to propose changes to 
existing agency-specific NEPA procedures by September 14, 2021, to make 
those procedures consistent with the 2020 regulations.\45\ CEQ extended 
the date by 2 years to avoid agencies proposing changes to agency-
specific implementing procedures on a tight deadline to conform to 
regulations that are undergoing extensive review and would likely 
change in the near future.
---------------------------------------------------------------------------

    \45\ Deadline for Agencies to Propose Updates to National 
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
---------------------------------------------------------------------------

    Next, on October 7, 2021, CEQ issued a ``Phase 1'' proposed rule to 
focus on a discrete set of provisions designed to restore three 
elements of the 1978 regulations.\46\ CEQ proposed changes to the 
provisions it considered most critical to address, revise, and clarify 
while completing the comprehensive review. First, CEQ proposed to 
revise 40 CFR 1502.13 to clarify that agencies have discretion to 
consider a variety of factors when assessing an application for 
authorization by removing a requirement that an agency base the purpose 
and need on the goals of an applicant and the agency's statutory 
authority. CEQ also proposed a conforming edit to the definition of 
``reasonable alternatives'' in 40 CFR 1508.1(z). Second, CEQ proposed 
to remove language in 40 CFR 1507.3 that could be construed to limit 
agencies' flexibility to develop or revise procedures to implement NEPA 
specific to their programs and functions that may go beyond CEQ's 
regulatory requirements. Finally, CEQ proposed to revise the definition 
of ``effects'' in 40 CFR 1508.1(g) to restore the substance of the 
definitions of ``effects'' and ``cumulative impacts'' contained in the 
1978 regulations. CEQ received 94,458 written comments in response to 
the proposed rule. CEQ issued a Phase 1 final rule on April 20, 
2022,\47\ which finalized the proposed revisions.
---------------------------------------------------------------------------

    \46\ National Environmental Policy Act Implementing Regulations 
Provisions, 86 FR 55757 (Oct. 7, 2021).
    \47\ National Environmental Policy Act Implementing Regulations 
Revisions, 87 FR 23453 (Apr. 20, 2022) (``Phase 1 Final Rule'').
---------------------------------------------------------------------------

    CEQ received a variety of comments on the Phase 1 proposed rule 
suggesting additional provisions or changes that CEQ should consider as 
part of the Phase 2 rulemaking.\48\ For example, commenters requested 
that CEQ strengthen public participation requirements and encourage 
more robust public engagement; better incorporate environmental justice 
and climate change considerations into the regulations; further address 
the climate and biodiversity crises; modernize environmental review of 
renewable energy projects; and further refine definitions, including 
human environment, major Federal action, and effects. In addition, 
commenters suggested that CEQ address page and time limits; mitigation; 
tiering; CEs; and improved coordination among Federal, Tribal, State, 
and local agencies and governments. Additionally, many of the comments 
on the Phase 1 proposed rule's changes to 40 CFR 1502.13 on purpose and 
need also included suggestions for changes to 40 CFR 1502.14 and the 
discussion of alternatives. Where appropriate, CEQ summarizes these 
Phase 1 comments as they relate to specific subsections of Section II 
of the preamble.
---------------------------------------------------------------------------

    \48\ See CEQ, National Environmental Policy Act Implementing 
Regulations Revision Phase 1 Response to Comments (Apr. 2022) 
(``Phase 1 Response to Comments''), https://www.regulations.gov/document/CEQ-2021-0002-39427.
---------------------------------------------------------------------------

    Here, in this Phase 2 notice of proposed rulemaking (NPRM), CEQ 
initiates a broader rulemaking to revise, update, and modernize the 
NEPA implementing regulations. Informed by CEQ's extensive experience 
implementing NEPA, CEQ proposes further revisions to ensure the NEPA 
process provides for efficient and effective environmental reviews that 
are guided by science and are consistent with the statute's text and 
purpose; enhance clarity and certainty for Federal agencies, project 
proponents, and the public; inform the public about the potential 
environmental effects of Federal Government actions and enable full and 
fair public participation; and ultimately promote better informed 
Federal decisions that protect and enhance the quality of the human 
environment, including by ensuring climate change, environmental 
justice, and other environmental issues are fully accounted for in 
agencies' decision-making processes.
    As part of CEQ's review, CEQ engaged in extensive outreach with a 
wide variety of interested and experienced parties to solicit their 
feedback and recommendations on what new elements CEQ should consider 
adding; what elements from the 1978 regulations CEQ should consider 
restoring; what existing elements of the NEPA regulations CEQ should 
consider clarifying, revising, or removing; and what existing elements 
CEQ should retain in their current form. CEQ convened a Federal 
interagency working group made up of NEPA practitioners, attorneys, and 
other experts to hear and discuss their recommendations on a wide 
variety of issues in the NEPA regulations and more generally with the 
environmental review process. The Federal agency participants 
represented the broad array of NEPA practice and environmental 
expertise across the

[[Page 49929]]

Federal Government, including land management, infrastructure, resource 
conservation, climate, and environmental justice experts.
    CEQ also hosted or participated in over 60 meetings with external 
parties, such as environmental organizations, business and industry 
organizations (including timber, energy, air, grazing, mining, and 
transportation organizations), Tribal Nations, State governments, 
environmental justice organizations, academics, and labor 
organizations. Additionally, CEQ held a Tribal consultation 
specifically on the Phase 2 regulations and the updates to CEQ's GHG 
guidance on November 12, 2021. CEQ considered the feedback received 
during these engagements in the development of this proposed rule and 
has included summaries of the external engagements in the docket.
    Finally, as discussed in Section I.B, CEQ relies on its extensive 
experience overseeing and implementing NEPA in the development of this 
rule. CEQ has over 50 years of experience advising Federal agencies on 
the implementation of NEPA. CEQ collaborates daily with Federal 
agencies on specific NEPA reviews, provides government-wide guidance on 
NEPA implementation, consults with agencies on the development of 
agency-specific NEPA implementing procedures and determines they 
conform with NEPA and the CEQ regulations, and advises the President on 
a vast array of environmental issues. This experience also enables CEQ 
to clarify the patchwork of fact-specific judicial decisions that have 
evolved under NEPA. This rulemaking seeks to bring clarity and 
predictability to Federal agencies and outside parties whose activities 
require Federal action and therefore trigger NEPA review, while also 
facilitating better environmental and social outcomes due to informed 
decision making.

II. Summary of Proposed Rule

    This section summarizes CEQ's proposed revisions to its NEPA 
implementing regulations and the rationale for the changes. CEQ's 
proposed changes fall into five general categories. First, CEQ proposes 
revisions to implement the amendments to NEPA made by the FRA. Second, 
where CEQ determined it made sense to do so, CEQ proposes to amend 
provisions, which the 2020 regulations revised, to revert to the 
language from the 1978 regulations that was in effect for more than 40 
years, subject to minor revisions for clarity. Third, CEQ proposes to 
remove certain provisions added by the 2020 rule that CEQ considers 
imprudent or legally unsettled. Fourth, CEQ proposes to amend certain 
provisions to enhance consistency and provide clarity to improve the 
efficiency and effectiveness of the environmental review process. 
Fifth, CEQ proposes revisions to the regulations to implement decades 
of CEQ and agency experience implementing and complying with NEPA, 
foster science-based decision making--including decisions that account 
for climate change and environmental justice--improve the efficiency 
and effectiveness of the environmental review process, and better 
effectuate NEPA's statutory purposes. CEQ is retaining many of the 
changes made in the 2020 rulemaking particularly where those changes 
codified longstanding practice or guidance or enhanced the efficiency 
and effectiveness of the NEPA process.
    In response to the Phase 1 proposed rule, CEQ received many 
comments on provisions not addressed in Phase 1. CEQ indicated in the 
Phase 1 final rule that it would consider such comments during the 
development of this Phase 2 rulemaking. CEQ has done so, and where 
applicable, this NPRM provides a high-level summary of the important 
issues raised in those public comments.
    While some comments have advocated for a straight return to the 
1978 regulations, CEQ does not consider this to be the appropriate 
approach. As part of its review, CEQ evaluated the provisions of the 
2020 regulations and sought feedback from NEPA experts and interested 
stakeholders to identify provisions that, as written, add value to the 
NEPA process or that require amendments to enhance clarity or improve 
efficiency and effectiveness. For example, CEQ identified for retention 
the inclusion of Tribal interests throughout the regulations, the 
integration of mechanisms to facilitate better interagency cooperation, 
and the reorganization and modernization of provisions addressing 
certain elements of the process to make the regulations easier to 
understand and follow. CEQ considers it important that the regulations 
meet current goals and objectives, including to promote the development 
of NEPA documents that are concise but also include the information 
needed to inform decision makers and reflect public input. CEQ's 
proposed revisions to the regulations emphasize the importance of 
transparency and public engagement, reflecting modern practices and 
changing needs, while also recognizing the discretion and flexibility 
that Federal agencies need to respond and move efficiently and 
effectively through the NEPA process.

A. Proposed Changes Throughout Parts 1500-1508 ⁴⁹
---------------------------------------------------------------------------

    \49\ CEQ prepared a redline of this proposed rule's changes to 
the current CEQ regulations and provided it in the docket as a tool 
to facilitate public review of this NPRM.
---------------------------------------------------------------------------

    CEQ proposes several revisions throughout parts 1500-1508 to 
provide consistency, improve clarity, and correct grammatical errors. 
Improved clarity reduces confusion and results in more consistent 
implementation, thereby improving the efficiency of the NEPA process 
and reducing the risk of litigation.
    For greater consistency and clarity, CEQ proposes to change the 
word ``impact'' to ``effect'' where this term is used as a noun because 
these two words are synonymous. Throughout the regulations, to improve 
clarity, CEQ proposes to use the word ``significant'' only to modify 
the term ``effects.'' Accordingly, throughout the regulations, where 
``significant'' modifies a word other than ``effects,'' CEQ proposes to 
replace ``significant'' with another accurate adjective, typically 
``important'' or ``substantial,'' which have been used throughout the 
CEQ regulations since 1978. In doing so, CEQ seeks to avoid confusion 
about what ``significant'' means in these other contexts by limiting 
its use to describing ``significant effects.'' The one exception to 
this change would be that CEQ proposes for the regulations to continue 
to refer to a finding of no significant impact (FONSI), which CEQ would 
leave intact because the concept of a FONSI is entrenched in practice 
and case law. CEQ heard from public comments and agency feedback on the 
Phase 1 rulemaking that use of the word ``significant'' in phrases such 
as ``significant issues'' or ``significant actions'' creates confusion 
on what the word ``significant'' means.\50\ The proposed change also 
aligns with the proposed definition of ``significant effects'' in Sec.  
1508.1(jj),\51\ as discussed in section II.J.13. CEQ does not intend 
these proposed changes to substantively change the meaning of the 
provisions.
---------------------------------------------------------------------------

    \50\ Phase 1 Response to Comments, supra note 48, at 120-21.
    \51\ In the preamble, CEQ uses the section symbol (Sec.  ) to 
refer to the proposed regulations as set forth in this NPRM and 40 
CFR to refer to the current CEQ regulations as set forth in 40 CFR 
parts 1500-1508. When referencing specific regulatory sections in 
place prior to the 2020 final rule, CEQ uses 40 CFR but adds 
``(2019).''
---------------------------------------------------------------------------

    For clarity, CEQ proposes to change ``statement'' to 
``environmental impact statement'' and ``assessment'' to 
``environmental assessment'' where the regulations only use the short 
form in the paragraph. See, e.g., Sec. Sec.  1502.3 and 1506.3(e)(1) 
through (e)(3).

[[Page 49930]]

    CEQ also proposes to make grammatical corrections or other edits 
throughout the regulations where CEQ considers the changes necessary 
for the reader to understand fully the meaning of the sentences. 
Finally, CEQ proposes to update the authorities for each part, update 
the references to NEPA as amended by the FRA, and fix internal cross 
references to other sections of the regulations throughout to follow 
the correct Federal Register format.

B. Proposed Revisions To Update Part 1500, Purpose and Policy

1. Purpose (Sec.  1500.1) and Policy (Sec.  1500.2)
    Consistent with the approach taken in the 1978 regulations, CEQ 
proposes to address the purpose of the CEQ regulations in Sec.  1500.1, 
``Purpose,'' and reinstate Sec.  1500.2, ``Policy.'' In Sec.  1500.1, 
CEQ proposes to restore much of the language from the 1978 regulations 
and further incorporate the policies Congress established in the NEPA 
statute. CEQ is proposing these changes to restore text regarding 
NEPA's purpose and goals, placing the regulations into their broader 
context. CEQ also finds value in restating the policies of the Act 
within the regulations, which would improve readability by avoiding the 
need for cross references to material outside the four corners of the 
regulations.
    Specifically, CEQ proposes to revise 40 CFR 1500.1(a) by 
subdividing it into Sec.  1500.1(a), (a)(1), and (a)(2), and restoring 
language from the 1978 regulations that states the principles and 
policies Congress established in sections 101 and 102 of NEPA. CEQ is 
proposing to remove the language that describes NEPA as a purely 
procedural statute because, while correct, CEQ considers that language 
to be an inappropriately narrow view of NEPA's purpose that minimizes 
some of the broader goals of NEPA described in section I.A. While CEQ 
agrees that a NEPA analysis does not dictate a particular outcome by 
the decision maker, Congress established the NEPA process to provide 
for better informed Federal decision making and improve environmental 
outcomes, and those goals are not fulfilled if the NEPA analysis is 
treated merely as a check-the-box exercise. In short, CEQ does not 
consider it necessary to repeatedly emphasize the procedural nature of 
NEPA, which may suggest that NEPA mandates a rote paperwork exercise 
and de-emphasizes the Act's larger goals and purposes. Instead, CEQ 
remains cognizant of the goals Congress intended to achieve through the 
NEPA process in developing its implementing regulations, and agencies 
should carry out NEPA's procedural requirements in a manner faithful to 
the purposes of the statute.
    In Sec.  1500.1(a)(1), CEQ proposes to retain the sentence 
summarizing section 101(a) of NEPA and add a second sentence 
summarizing section 101(b) to clarify that agencies also should 
accomplish the purposes described in section 101(b) through NEPA 
reviews. Including this language in Sec.  1500.1(a)(1) would help 
agencies understand what the regulations refer to when the regulations 
direct or encourage agencies to act in a manner consistent with the 
purposes or policies of the Act. See, e.g., Sec. Sec.  1500.2(a), 
1500.6, 1501.1(a), 1502.1(a), and 1507.3(b).
    In Sec.  1500.1(a)(2), CEQ proposes to restore generally the 
language of the 1978 regulations stating that the purpose of the 
regulations is to convey what agencies should and must do to comply 
with NEPA to achieve its purpose. CEQ proposes to strike the language 
added by the 2020 rule that NEPA requires Federal agencies to provide a 
detailed statement for major Federal actions, that the purpose and 
function of NEPA is satisfied if agencies have considered environmental 
information and informed the public, and that NEPA does not mandate 
particular results. While it is true that NEPA does not mandate 
particular results in specific decision-making processes, this language 
unduly minimizes Congress's understanding that procedures ensuring that 
agencies analyze, consider, and disclose environmental effects will 
lead to better substantive outcomes, and is inconsistent with 
Congress's statements of policy in the NEPA statute.
    In Sec.  1500.1(b), CEQ proposes to strike the first two sentences 
added by the 2020 rule and restore language from the 1978 regulations 
emphasizing the importance of the early identification of high-quality 
information that is relevant to a decision. Early identification and 
consideration of issues using high-quality information have long been 
fundamental to the NEPA process, particularly because this facilitates 
comprehensive analysis of alternatives and timely and efficient 
decision making, and CEQ considers it important to emphasize these 
considerations in this section. The proposed changes also emphasize 
that the environmental information that agencies use in the NEPA 
process should be high-quality, science-based, and accessible. CEQ 
proposes to strike the first two sentences of this paragraph, which the 
2020 rule added, because they also provide an unnecessarily narrow view 
of the purposes of NEPA and its implementing regulations.
    Finally, CEQ proposes in a new Sec.  1500.1(c) to restore text from 
the 1978 regulations, most of which the 2020 rule deleted, emphasizing 
the importance of NEPA reviews for informed decision making. The 
proposed changes to Sec.  1500.1 recognize that the procedural 
provisions of NEPA are intended to further the purpose and goals of the 
Act. One of those goals is to make improved and sound government 
decisions.
    The 2020 rule struck 40 CFR 1500.2 (2019) and integrated policy 
language into 40 CFR 1500.1 (2020).\52\ CEQ is proposing to once again 
provide for two sections, renaming Sec.  1500.1 to ``Purpose'' and 
restoring Sec.  1500.2 as ``Policy.'' CEQ is proposing to restore with 
some updates the language of the 1978 regulations to Sec.  1500.2.
---------------------------------------------------------------------------

    \52\ 2020 Final Rule, supra note 36, at 43316-17.
---------------------------------------------------------------------------

    In Sec.  1500.2(a), CEQ proposes to restore the 1978 language 
directing agencies to interpret their authorities consistent with the 
policies of NEPA and the CEQ regulations to the fullest extent 
possible. Paragraph (b) would restore with clarifying edits the 1978 
language directing agencies to implement procedures that facilitate a 
meaningful NEPA process to the fullest extent possible and emphasize 
that environmental documents should be concise and clear. Paragraph (c) 
would direct agencies to integrate NEPA with other planning and 
environmental review requirements to the fullest extent possible, which 
promotes efficient processes. CEQ proposes to modernize language from 
the 1978 regulations in paragraph (d) to emphasize public engagement, 
including with communities with environmental justice concerns, which 
often include communities of color, low-income communities, and 
indigenous communities, and Tribal communities. CEQ views an emphasis 
on engagement with such communities to be important because agencies 
have not always meaningfully engaged with them and such communities 
have been disproportionately and adversely affected by certain Federal 
activities.
    In proposing to make this change to emphasize public engagement, 
CEQ notes that the obligation to consult with Tribal Nations on a 
nation-to-nation basis is distinct from the public engagement 
requirements of NEPA.\53\ CEQ invites comment on whether

[[Page 49931]]

additional changes to the NEPA regulations would be appropriate in 
light of the obligation for Tribal consultation.
---------------------------------------------------------------------------

    \53\ See E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249 (Nov. 9, 2000); Presidential 
Memorandum, Tribal Consultation and Strengthening Nation-to-Nation 
Relationships, 86 FR 7491 (Jan. 29, 2021), https://www.federalregister.gov/d/2021-02075.
---------------------------------------------------------------------------

    In paragraph (e), CEQ proposes to restore language from the 1978 
regulations regarding the identification of alternatives that avoid or 
minimize adverse effects. CEQ is proposing to add examples of such 
alternatives, including those that will reduce climate change-related 
effects or address effects that disproportionately affect communities 
with environmental justice concerns consistent with E.O. 12898 and E.O. 
14096, to highlight the importance of considering such effects in 
environmental documents, consistent with NEPA's requirements, including 
the consideration of high-quality information, such as best available 
science and data.\54\
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    \54\ Consideration of environmental justice and climate change-
related effects has long been part of NEPA analysis. See, e.g., 
Environmental Justice Guidance, supra note 6, and Ctr. For 
Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 
F.3d 1172 (9th Cir. 2008). See also 42 U.S.C. 4331(b) (``[I]t is the 
continuing responsibility of the Federal Government to . . . assure 
for all Americans safe, healthful, productive, and esthetically and 
culturally pleasing surroundings . . . [and to] maintain, wherever 
possible, an environment which supports diversity and variety of 
individual choice'' (emphasis added); 42 U.S.C. 4332(2)(F) (``all 
agencies of the Federal Government shall . . . recognize the 
worldwide and long-range character of environmental problems'').
---------------------------------------------------------------------------

    Finally, in paragraph (f), CEQ proposes to restore the direction 
from the 1978 regulations to use all practicable means to restore and 
enhance the environment, consistent with the policies of NEPA. These 
proposed restorations and additions to Sec.  1500.2(d), (e), and (f) 
reflect longstanding practice among Federal agencies and align with 
NEPA's statutory policies, including to avoid environmental 
degradation, preserve historic, cultural, and natural resources, and 
``attain the widest range of beneficial uses of the environment without 
degradation, risk to health or safety, or other undesirable and 
unintended consequences.'' 42 U.S.C. 4331(b).
    The 2020 rule removed the Policy section stating that it was 
duplicative of other sections.\55\ However, CEQ proposes to restore and 
update this section because a robust articulation of the Act's policy 
principles is fundamental to the NEPA process. CEQ also considers it 
helpful to agency practitioners and the public to have a consolidated 
listing of policy objectives regardless of whether other sections of 
the regulations address those objectives.
---------------------------------------------------------------------------

    \55\ 2020 Final Rule, supra note 36 at 43317.
---------------------------------------------------------------------------

2. NEPA Compliance (Sec.  1500.3)
    CEQ proposes to remove from Sec.  1500.3 provisions added by the 
2020 rule regarding exhaustion and remedies, restore some language from 
the 1978 regulations removed by the 2020 rule, and make other 
conforming edits. Specifically, in Sec.  1500.3(a), CEQ proposes to 
remove the phrase ``except where compliance would be inconsistent with 
other statutory requirements'' because this is addressed by Sec.  
1500.6. CEQ also proposes to remove the reference to E.O. 13807, which 
E.O. 13990 revoked, as well as the reference to section 309 of the 
Clean Air Act because this provision is implemented by EPA.
    CEQ proposes to delete 40 CFR 1500.3(b), including its paragraphs. 
The process established by the 2020 rule provides that first, an agency 
must request in its notice of intent (NOI) comments on all relevant 
information, studies, and analyses on potential alternatives and 
effects. 40 CFR 1500.3(b)(1). Second, the agency must summarize all the 
information it receives in the draft EIS and specifically seek comment 
on it. 40 CFR 1500.3(b)(2), 1502.17, 1503.1(a)(3). Third, decision 
makers must certify in the record of decision (ROD) that they 
considered all the alternatives, information, and analyses submitted by 
public commenters. 40 CFR 1500.3(b)(4), 1505.2(b). Fourth, any comments 
not submitted within the comment period are considered forfeited as 
unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b). By adding this exhaustion 
process, the 2020 rule aimed to limit legal challenges and judicial 
remedies.\56\
---------------------------------------------------------------------------

    \56\ 2020 Final Rule, supra note 36, at 43317-18.
---------------------------------------------------------------------------

    CEQ proposes to remove this process because it establishes an 
inappropriately stringent exhaustion requirement for public commenters 
and agencies. It is unsettled whether CEQ has the authority under NEPA 
to set out an exhaustion requirement that bars parties from bringing 
claims on the grounds that an agency's compliance with NEPA violated 
the APA, pursuant to 5 U.S.C. 702. While the 2020 rule correctly 
identifies instances in which courts have ruled that parties may not 
raise legal claims based on issues that they themselves did not raise 
during the comment period,\57\ other courts have sometimes ruled that a 
plaintiff can bring claims where another party raised an issue in 
comments or where the agency should have identified an issue on its 
own. Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of Interior, 
929 F. Supp. 2d 1039, 1045-46 (E.D. Cal. 2013); Wyo. Lodging and Rest. 
Ass'n v. U.S. Dep't of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo. 
2005); see Pub. Citizen, 541 U.S. at 765 (noting that ``[T]he agency 
bears the primary responsibility to ensure that it complies with NEPA . 
. . and an EA's or an EIS' flaws might be so obvious that there is no 
need for a commentator to point them out specifically in order to 
preserve its ability to challenge a proposed action''). Because the 
fundamental question raised by these cases is the availability of a 
cause of action under the APA, and not a question of interpreting NEPA, 
CEQ considers this question more appropriate for the courts to 
determine. Further, nothing in this revision would limit the positions 
the Federal Government may take regarding whether, based on the facts 
of a particular case, a particular issue has been forfeited by a 
party's failure to raise it before the agency, and removing this 
provision does not suggest that a party should not be held to have 
forfeited an issue by failing to raise it. By deleting the exhaustion 
requirements, CEQ does not take the position that plaintiffs may raise 
new and previously unraised issues in litigation. Rather, CEQ considers 
this to be a question of general administrative law and therefore the 
courts to be the proper venue to determine whether any particular claim 
can proceed.
---------------------------------------------------------------------------

    \57\ Id. (citing Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 
(2004); Karst Env't. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 
F. App'x 421 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest 
Serv., 661 F.3d 969 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA, 
217 F.3d 1246 (9th Cir. 2000); Nat'l Ass'n of Mfrs. v. U.S. Dep't of 
the Interior, 134 F.3d 1095 (D.C. Cir. 1998)).
---------------------------------------------------------------------------

    Moreover, the exhaustion requirement established in the 2020 rule 
is at odds with longstanding agency practice. While courts have ruled 
that agencies are not required to do so, see, e.g., Pub. Citizen, 541 
U.S. at 764-65 (finding that where a party does not raise an objection 
in their comments on an EA, the party forfeits any objection to the EA 
on that ground), agencies have discretion to consider and respond to 
comments submitted after a comment period ends. The exhaustion 
requirement established in the 2020 regulations could encourage 
agencies to disregard important information presented to the agency 
shortly after a comment period closes, and such a formalistic approach 
would not advance NEPA's goal of informed decision making.
    To be clear, this change does not relieve parties interested in 
participating in, commenting on, or ultimately challenging a NEPA 
analysis

[[Page 49932]]

of the obligation to ``structure their participation so that it is 
meaningful.'' Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 
Inc., 435 U.S. 519, 553 (1978). As CEQ's regulations have made clear 
since 1978, parties must provide comments that are as specific as 
possible to enable agencies to consider and address information during 
the decision-making processes. See 40 CFR 1503.3(a). While commenters 
should follow the appropriate procedures and time limits, the revisions 
would provide agencies flexibility to address unusual circumstances.
    CEQ proposes to redesignate 40 CFR 1500.3(c), ``Review of NEPA 
compliance,'' as paragraph (b) and move to paragraph (b) the sentence 
from 40 CFR 1500.3(d) regarding harmless error for minor, non-
substantive errors, which is a concept that has been in place since the 
1978 regulations. CEQ proposes to delete the remaining text of 40 CFR 
1500.3(c), removing language that noncompliance with NEPA and the CEQ 
regulations should be resolved as expeditiously as possible. While CEQ 
agrees with expeditious resolution of issues, CEQ considers this 
inappropriate for regulatory text as these regulations cannot compel 
members of the public or courts to resolve NEPA disputes. Rather, the 
regulations promote public engagement, appropriate analysis, and 
informed decision making to facilitate NEPA compliance and avoid such 
disputes from the outset. CEQ also proposes to strike the last sentence 
in this paragraph regarding bonding and other security requirements, 
which relates to litigation over an agency action and not the NEPA 
process itself. It is unsettled whether NEPA provides agencies with 
authority to promulgate procedures that require plaintiffs to post 
bonds in litigation brought under the APA. In any case, CEQ does not 
consider it appropriate to address this issue in the NEPA implementing 
regulations.
    With the exception of the last sentence in 40 CFR 1500.3(d) 
regarding remedies, which CEQ proposes to move, as discussed earlier in 
this section, CEQ proposes to delete the remainder of the paragraph. It 
is questionable whether CEQ has the authority to direct courts about 
what remedies are available in litigation brought under the APA to 
challenge NEPA compliance and, in any case, CEQ considers the 2020 
rule's addition of this paragraph to be inappropriate. CEQ considers 
courts to be in the best position to determine the appropriate remedies 
when a plaintiff successfully challenges an agency's NEPA compliance.
    Finally, CEQ proposes to redesignate 40 CFR 1500.3(e), 
``Severability,'' as paragraph (c), without change. CEQ intends these 
regulations to be severable. The proposed rule would amend existing 
regulations and the NEPA regulations could be functionally implemented 
if each revision proposed in this rule occurred on its own or in 
combination with any other subset of proposed revisions. As a result, 
if a court were to invalidate any particular provision of this rule, 
allowing the remainder of the rule to remain in effect would still 
result in a functional NEPA review process. This approach to 
severability is the same as the approach that CEQ took when it 
promulgated the 2020 regulations, because those amendments similarly 
could be layered onto the 1978 regulations individually without 
disrupting the overarching NEPA review process.
3. Concise and Informative Environmental Documents (Sec.  1500.4)
    CEQ proposes to revise Sec.  1500.4 to emphasize the important 
values served by concise and informative NEPA documents beyond merely 
reducing paperwork, such as promoting informed and efficient decision 
making and facilitating meaningful public participation. Section 1500.4 
lists examples of provisions in the CEQ regulations that provide 
mechanisms by which agencies may prepare concise and informative 
environmental documents. Each paragraph listed in Sec.  1500.4 includes 
cross references to regulatory provisions that further the goal of 
preparing concise and informative documents.
    To that end, CEQ proposes to retitle Sec.  1500.4 from ``Reducing 
paperwork'' to ``Concise and informative environmental documents'' and 
revise the introductory text to clarify that the paragraphs in this 
section provide examples of the mechanisms in the regulations that 
agencies can use to prepare concise and informative environmental 
documents. CEQ proposes to remove paragraphs (a) and (b) from 40 CFR 
1500.4 because they are redundant with Sec.  1500.5(a) and (b) and are 
more appropriately addressed in the section on reducing delay, as well 
as paragraph (d) because it is addressed in the revised introductory 
text. CEQ proposes to redesignate 40 CFR 1500.4(c) and (e) through (q) 
as Sec.  1500.4 (a) and (b) through (n), respectively.
    CEQ proposes to add ``e.g.,'' to the cross references listed in 
Sec.  1500.4(b), (c), and (e) to clarify that they are non-exclusive 
examples of how agencies can briefly discuss unimportant issues, write 
in plain language, and reduce emphasis on background material. CEQ 
would update the cross references to other sections of the subchapter 
to reflect proposed changes elsewhere in the regulations. In paragraphs 
(c) and (e), CEQ proposes to expand the reference from EISs to all 
environmental documents, as the concepts discussed are more broadly 
applicable. Additionally, in paragraph (e), CEQ proposes to insert 
``most'' before ``useful'' to clarify that the environmental documents 
should not contain portions that are useless.
    In Sec.  1500.4(f), CEQ proposes to replace ``significant'' with 
``important'' and insert ``unimportant'' to modify ``issues'' 
consistent with our proposal to only use ``significant'' to modify 
``effects.'' CEQ also proposes to clarify in paragraph (f) that scoping 
may apply to EAs. Finally, CEQ proposes to expand paragraph (h), 
regarding programmatic review and tiering, to include EAs to align with 
the proposed changes to Sec.  1501.11. Finally, in paragraph (m), CEQ 
proposes to insert ``Federal'' before ``agency'' consistent with Sec.  
1506.3, which allows adoption of NEPA documents prepared by other 
Federal agencies.
    Concise and informational documents make the NEPA process more 
accessible and transparent to the public, allowing the public an 
opportunity to contribute to the NEPA process. The changes proposed in 
Sec.  1500.4 align the regulations with the intent of NEPA to allow the 
public to provide input, as well as CEQ's stated goal of increasing 
transparency, while providing agencies flexibility on how to achieve 
concise and informative documents. These proposed changes aim to 
encourage the preparation of documents that can be easily read and 
understood, which in turn promote informed and efficient decision 
making.
4. Efficient Process (Sec.  1500.5)
    CEQ proposes minor changes to Sec.  1500.5 to provide clarity and 
flexibility regarding mechanisms by which agencies can apply the CEQ 
regulations to improve efficiency in the environmental review process. 
CEQ proposes these changes to acknowledge that unanticipated events and 
circumstances beyond agency control may delay the environmental review 
process, and to recognize that, while these approaches may improve 
efficiency for many NEPA reviews, they could be inefficient for others. 
To that end, CEQ proposes to retitle Sec.  1500.5 from ``Reducing 
delay'' to ``Efficient process'' and revise the introductory text to 
reflect the new title. The other proposed changes include adding EAs

[[Page 49933]]

to paragraph (a) to make the provision consistent with the definition 
of ``categorical exclusion;'' changing ``real issues'' to ``important 
issues that required detailed analysis'' in paragraph (f) for 
consistency with Sec.  1502.4; and expanding the scope of paragraph (h) 
from EISs to environmental documents to make clear that, regardless of 
the level of NEPA review, agencies should prepare environmental 
documents early in the process. Proposed Sec.  1500.5 recognizes the 
importance of timely information for decision making and encourages 
agencies to implement the 12 listed mechanisms to achieve timely and 
efficient NEPA processes.
5. Agency Authority (Sec.  1500.6)
    In Sec.  1500.6, CEQ proposes to revise the second sentence to 
remove the qualification added in the 2020 rule that agencies must 
ensure full compliance with the Act ``as interpreted by'' these 
regulations and instead state that agencies must review and revise 
their procedures to ensure compliance with NEPA and the CEQ 
regulations. The phrase added in 2020 could be read to indicate that 
agencies have no freestanding requirement to comply with NEPA itself, 
which would be untrue. CEQ also considers the proposed change necessary 
for consistency with Sec.  1507.3(b), which CEQ revised in the Phase 1 
rulemaking to make clear that, while agency procedures must be 
consistent with the CEQ regulations, agencies have discretion and 
flexibility to develop procedures beyond the CEQ regulatory 
requirements, enabling agencies to address their specific programs, 
statutory mandates, and the contexts in which they operate. CEQ 
proposes to make conforming edits in Sec. Sec.  1502.2(d) and 1502.9(b) 
to remove this phrase.
    In the third sentence, CEQ proposes to remove the cross-reference 
to Sec.  1501.1 for consistency with the proposed modifications to 
Sec.  1501.1 and restore the intent of language from the 1978 
regulations, with modification, explaining that the phrase ``to the 
fullest extent possible'' means that each agency must comply with 
section 102 of NEPA unless an agency activity, decision, or action is 
exempted by law or compliance with NEPA is impossible. Finally, CEQ 
proposes to strike the last sentence stating that the CEQ regulations 
do not limit an agency's other authorities or legal responsibilities, 
which the 2020 rule added to acknowledge the possibility of different 
statutory authorities with different requirements. While the 2020 
regulations contended that this sentence was added for consistency with 
E.O. 11514, as amended by section 2(g) of E.O. 11991, CEQ considers the 
sentence superfluous and unnecessarily vague. As stated in the new 
proposed text, agencies must comply with NEPA in carrying out an 
activity, decision, or action unless exempted by law or compliance with 
NEPA is impossible. That description would reflect accurately the 
directive that Federal agencies comply with the CEQ regulations 
``except where such compliance would be inconsistent with statutory 
requirements.'' \58\
---------------------------------------------------------------------------

    \58\ 2020 Final Rule, supra note 36, at 43319.
---------------------------------------------------------------------------

    CEQ's proposed revisions to Sec.  1500.6 would clarify that 
agencies have an independent responsibility to ensure compliance with 
NEPA and a duty to harmonize NEPA with their other statutory 
requirements and authorities to the maximum extent possible. This is 
true as a general matter of statutory construction as well as under the 
specific statutory mandate of section 102 of NEPA, which requires that 
``the policies, regulations, and public laws of the United States shall 
be interpreted and administered in accordance with the policies set 
forth in this [Act].'' 42 U.S.C. 4332(1).
    Therefore, compliance with NEPA is only impossible within the 
meaning of this subsection when the conflict between another statute 
and the requirements of NEPA are clear, unavoidable, and 
irreconcilable. Absent exemption by Congress or a court, an 
irreconcilable conflict exists only if the agency's authorizing statute 
grants it no discretion to comply with NEPA while also satisfying the 
statutory mandate.

C. Proposed Revisions To Update Part 1501, NEPA and Agency Planning

    CEQ is proposing substantive revisions to all sections in part 1501 
except Sec.  1501.2, ``Apply NEPA early in the process,'' to which CEQ 
proposes minor edits for readability that CEQ considers clarifying and 
non-substantive. CEQ invites comment on whether it should make any 
substantive changes to that section or other changes to part 1501.
1. Purpose (Sec.  1501.1)
    CEQ proposes to revert and retitle Sec.  1501.1 to ``Purpose,'' to 
emphasize the goals of part 1501 consistent with the approach in the 
1978 regulations. As discussed further below, CEQ proposes to move some 
of the NEPA thresholds language in 40 CFR 1501.1 to Sec.  1503.1(a), 
strike the remaining text, and replace it with new provisions similar 
to those in the 1978 regulations.
    In Sec.  1501.1(a), CEQ proposes to highlight the importance of 
integrating NEPA early in agency planning processes by generally 
restoring the language from the 1978 regulations, while also 
emphasizing that this promotes an efficient process and reduces delay. 
Restoring this language is consistent with section 102(2)(C) of NEPA 
and the objective to build into agency decision making, beginning at 
the earliest point, an appropriate consideration of the environmental 
aspects of a proposed action. 42 U.S.C. 4332(2)(C). CEQ proposes in 
paragraph (b) to emphasize early engagement in the environmental review 
process consistent with other changes proposed throughout the 
regulations to elevate the importance of early coordination and 
engagement throughout the NEPA process to identify and address 
potential issues early in a decision-making process, thereby helping to 
reduce the overall time required to approve a project and improving 
outcomes. In new paragraph (c), CEQ proposes to restore text from the 
1978 regulations regarding expeditious resolution of interagency 
disputes as promoted in Sec. Sec.  1501.7 and 1501.8. Paragraph (d) 
also would restore the direction to identify the scope of the proposed 
action and important environmental issues consistent with Sec.  1501.3, 
thereby enhancing efficiency. Finally, paragraph (e) would highlight 
the importance of schedules consistent with Sec.  1501.10, which 
includes provisions requiring agencies to develop a schedule for all 
environmental reviews and authorizations, as well as Sec. Sec.  1501.7 
and 1501.8, which promote interagency coordination including with 
respect to schedules.
    As discussed further in section II.C.2, CEQ proposes to combine the 
threshold considerations provision with the process to determine the 
appropriate level of NEPA review in Sec.  1501.3 by moving 40 CFR 
1501.1(a)(1), (2), (4), and (5) to proposed Sec.  1501.3(a)(1), (2), 
(4), and (4)(ii), respectively, and striking the remaining paragraphs. 
The 2020 regulations replaced the purpose section in 40 CFR 1501.1 with 
a list of factors agencies should consider in assessing whether NEPA 
applies or is otherwise fulfilled for a proposed activity or decision, 
and allows agencies to make these threshold considerations pursuant to 
their agency NEPA procedures or on an individual basis.
    CEQ proposes to delete two of the threshold factors currently in 40 
CFR 1501.1(a). First, CEQ proposes to delete the factor currently 
listed in 40 CFR 1501.1(a)(3), inconsistency with Congressional intent 
expressed in another statute. Upon further

[[Page 49934]]

consideration, this factor may inadequately account for agencies' 
responsibility to harmonize NEPA with other statutes, as discussed 
further in section II.C.2. As discussed in section II.B.5, the 
regulations provide that an agency should determine if a statute or 
court exempts an action from NEPA or if compliance with NEPA and 
another statute would be impossible; if not, the agency must comply 
with NEPA. To the extent the factor suggests that Congress's intent 
regarding NEPA compliance involves considerations other than those two 
determinations, the factor is incorrect.
    Second, CEQ proposes to strike the factor in 40 CFR 1501.1(a)(6) 
regarding functional equivalence. While certain Environmental 
Protection Agency (EPA) actions are explicitly exempted from NEPA's 
environmental review requirements, and courts have found other EPA-
administered statutes to be functionally equivalent or otherwise 
exempt, CEQ considers this language added to the 2020 rule to go beyond 
the scope of the NEPA statute and case law because the language can be 
construed to expand functional equivalence beyond the narrow contexts 
in which it has been recognized. See, e.g., 15 U.S.C. 793(c)(1) 
(exempting EPA actions under the Clean Air Act); 33 U.S.C. 1371(c)(1) 
(exempting most EPA actions under the Clean Water Act); Env't Def. 
Fund, Inc. v. EPA, 489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting 
agency actions under FIFRA); W. Neb. Res. Council v. U.S. Env't Prot. 
Agency, 943 F.2d 867, 871-72 (8th Cir. 1991) (noting exemptions under 
the Safe Drinking Water Act). CEQ considers the more appropriate and 
prudent approach is for agencies to establish mechanisms in their 
agency NEPA procedures to align processes and requirements from other 
environmental laws with the NEPA process.
    CEQ proposes to eliminate the current language in 40 CFR 1501.1(b) 
allowing agencies to make threshold determinations individually or in 
their NEPA procedures because CEQ proposes to move the consideration of 
thresholds into Sec.  1501.3 to consolidate the steps agencies should 
take to determine whether NEPA applies and, if so, what level of NEPA 
review is appropriate. The language in 40 CFR 1501.1(b) is also 
redundant to language in Sec.  1507.3(d)(1), which would provide that 
agency NEPA procedures may identify activities or decisions that are 
not subject to NEPA. CEQ proposes to remove as unnecessary 40 CFR 
1501.1(b)(1) because agencies have discretion to consult with CEQ and 
have done so for decades on a wide variety of matters, including on 
determining NEPA applicability, without such specific language in the 
CEQ regulations. Finally, CEQ proposes to eliminate 40 CFR 1501.1(b)(2) 
directing agencies to consult with another agency when they jointly 
administer a statute if they are making a threshold applicability 
determination. While CEQ agrees that consultation is a good practice in 
such circumstances, it does not consider such a requirement necessary 
for these regulations because consultation is best determined by the 
agencies involved.
2. Determine the Appropriate Level of NEPA Review (Sec.  1501.3)
    CEQ proposes substantive revisions to Sec.  1501.3 to provide a 
more robust and consolidated description of the process agencies should 
use to determine the appropriate level of NEPA review, including 
addressing the threshold question of whether NEPA applies. CEQ also 
proposes clarifying edits, including adding paragraph headings to 
paragraphs (a) through (d). This revised provision would clarify the 
steps for assessing the appropriate level of NEPA review, facilitating 
a more efficient and predictable review process.
    First, as noted in section II.C.1, CEQ proposes to move 40 CFR 
1501.1(a)(1) to a new Sec.  1501.3(a), ``Applicability,'' and add a 
sentence requiring agencies to determine whether NEPA applies to a 
proposed activity or decision as a threshold matter. CEQ proposes this 
move because the inquiry into whether NEPA applies is central to 
determining the level of NEPA review and consolidating the steps in 
this process in one regulatory section would improve the clarity of the 
regulations. It is also consistent with the approach in section 106 of 
NEPA, which addresses threshold considerations. CEQ proposes to strike 
``or is otherwise fulfilled'' in the moved text because, as discussed 
in section II.C.1, CEQ is proposing to remove the functional 
equivalence factor from the regulation.
    Second, CEQ proposes to move the threshold determination factors 
agencies should consider when determining whether NEPA applies, 
currently at 40 CFR 1501.1(a)(1) and (2), to Sec.  1501.3(a)(1) and (2) 
respectively. CEQ proposes to align the text in paragraph (a)(1) with 
the language in Sec.  1500.6, ``exempted from NEPA by law,'' and align 
the text in paragraph (a)(2) with the language in section 106(a)(3) of 
NEPA, changing ``another statute'' to ``another provision of law'' for 
consistency with the statutory text. Third, CEQ proposes a new factor 
in paragraph (a)(3) to address circumstances other than those in which 
Congress or case law have exempted an activity from NEPA, to clarify 
that there must be an irreconcilable and fundamental conflict between 
complying with a statutory provision and complying with NEPA--i.e., the 
other statutory provision must make NEPA compliance impossible. This 
factor would be consistent with case law and longstanding principles of 
statutory construction that require statutes to be read in harmony when 
it is possible to do so. This approach also reflects the statutory 
requirement of section 102 of NEPA that agencies interpret and 
administer ``the policies, regulations, and public laws of the United 
States'' in accordance with NEPA's policies and is consistent with 
CEQ's proposed revisions to Sec.  1500.6, ``Agency Authority.'' 42 
U.S.C. 4332; see section II.B.5.
    Fourth, consistent with section 106(a)(1) and (4) of NEPA, CEQ 
proposes to move the threshold determination factors regarding whether 
the activity or decision is a major Federal action from 40 CFR 
1501.1(a)(4) and (5), to Sec.  1501.3(a)(4) and (a)(4)(ii), 
respectively. Consistent with section 106(a)(1) and (4) of NEPA, CEQ 
proposes to include whether an activity or decision is a final agency 
action or non-discretionary as subfactors of whether an activity or 
decision is a major Federal action in Sec.  1501.3(a)(4) because these 
are also exclusions from the definition of a major Federal action. When 
agencies assess whether an activity or decision meets the definition of 
a major Federal action, agencies determine whether they have discretion 
to consider environmental effects consistent with Sec.  1508.1(u). CEQ 
invites comment on whether it should make additional changes to Sec.  
1501.3(a) in light of the recently enacted provisions in section 106(a) 
regarding threshold determinations.
    Fifth, CEQ proposes to move, with clarifying edits, 40 CFR 
1501.9(e), ``Determination of scope,'' to a new proposed Sec.  
1501.3(b), ``Scope of action and analysis,'' to provide the next step 
in determining the appropriate level of NEPA review--the scope of the 
proposed action and its potential effects. In addition, CEQ proposes 
moving into Sec.  1501.3(b) one sentence from 40 CFR 1502.4(a) 
directing agencies to evaluate in a single NEPA review proposals 
sufficiently closely related to be considered a single action, as well 
as text from 40 CFR 1501.9(e)(1) regarding connected actions, which are 
closely related Federal activities or decisions that agencies should 
consider in a single NEPA document. CEQ proposes to move

[[Page 49935]]

40 CFR 1501.9(e)(1)(i) through (e)(1)(iii) providing the types of 
connected actions into Sec.  1501.3(b)(1)(i) through (b)(1)(iii), 
respectively. This longstanding principle from the 1978 regulations 
that agencies should not improperly segment their actions is relevant 
not only when agencies are preparing EISs; rather, it is critical for 
agencies to consider this as part of the determination whether to 
prepare an EA or apply a CE. CEQ proposes to consolidate this text into 
Sec.  1501.3(b) because the determination of the scope of the action, 
including any connected actions, necessarily informs the appropriate 
level of NEPA review. While 40 CFR 1501.9(e) currently applies to the 
scope of EISs, CEQ's proposed consolidation would clarify that this 
analysis is applicable not only to the scope of the environmental 
document itself but also to the determination of the level of NEPA 
document the agency must prepare. Because including this provision in 
Sec.  1501.3 would make it applicable to environmental reviews other 
than EISs, CEQ proposes to strike the sentence that accompanied the 
text in 40 CFR 1502.4(a) directing the lead agency to determine the 
scope and significant issues for analysis in the EIS as part of the 
scoping process. CEQ would retain in Sec.  1502.4(a), ``Scoping,'' the 
requirement that agencies determine the scope and significant issues 
for analysis in an EIS using an early and open process. CEQ proposes in 
Sec.  1501.3(b)(1)(i) to likewise change ``environmental impact 
statements'' to ``NEPA review.''
    In bringing the text from 40 CFR 1501.9(e) to Sec.  1501.3(b), CEQ 
is proposing to strike 40 CFR 1501.9(e)(2) and (3) relating to 
alternatives and impacts, respectively. The current CEQ regulations and 
the proposed revisions in this NPRM address the analyses of 
alternatives and effects regarding both EISs (Sec. Sec.  1502.14, 
1502.15) and EAs (Sec.  1501.5(c)(2)(ii) and (c)(2)(iii)). It would be 
premature in the process, unnecessary, and unhelpful to address 
alternatives as part of determining the level of NEPA review.
    Sixth, CEQ proposes to redesignate 40 CFR 1501.3(a) as paragraph 
(c), title it ``Levels of NEPA review,'' and retain the existing 
paragraphs (1) through (3) without change. In paragraph (c), CEQ 
proposes to incorporate section 106(b)(3) of NEPA addressing the 
sources of information agencies may rely on when determining the 
appropriate level of NEPA review. While section 106(b)(3) only directly 
applies to an agency's determination whether to prepare an EA or an 
EIS, CEQ views the approach to reliable data and producing new research 
as consistent with longstanding practice and caselaw and appropriate to 
apply broadly to an agency's determination of the appropriate level of 
NEPA review, including a determination that no review is required. This 
approach avoids creating an implication that an agency could be 
required to conduct new research in a broader range of circumstances 
when making threshold determinations outside of whether to prepare an 
EA or EIS, for example in considering whether a CE applies. CEQ invites 
comment on this approach.
    Seventh, CEQ proposes to redesignate 40 CFR 1501.3(b) as Sec.  
1501.3(d), title it ``Significance determination--context and 
intensity,'' and address factors agencies must consider in determining 
significance by restoring with some modifications the consideration of 
``context'' and ``intensity'' from the 1978 regulations, which appeared 
in the definition of ``significantly.'' See 40 CFR 1508.27 (2019). 
Because this text provides direction on how agencies determine the 
significance of an effect, rather than a definition, this is a more 
appropriate location for this provision than Sec.  1508.1.
    CEQ proposes to modify the introductory language in Sec.  1501.3(d) 
by requiring agencies to consider the context of an action and the 
intensity of the effects when considering whether the proposed action's 
effects are significant. CEQ proposes to strike the sentence requiring 
agencies to consider connected actions because this concept would be 
included in proposed paragraph (c).
    Paragraph (d)(1) would restore the consideration of the context of 
the proposed action as a standalone consideration. Specifically, CEQ 
proposes to restore language from the 1978 regulations requiring 
agencies to analyze the significance of an action in several contexts. 
The proposed provision also provides some examples of contexts for 
consideration. First, the provision proposes agencies should consider 
the characteristics of the relevant geographic area such as proximity 
to unique or sensitive resources or vulnerable communities. Such 
resources may include historic or cultural resources, Tribal sacred 
sites, and various types of ecologically sensitive areas. This proposal 
relates to the intensity factor proposed in (d)(2)(iii), which CEQ is 
proposing to restore from the 1978 regulations. CEQ is proposing to 
include it as a context factor as well since it relates to the setting 
of the proposed action. It also would encourage agencies to consider 
proximity to communities with environmental justice concerns.
    Second, CEQ proposes that agencies should consider the potential 
global, national, regional, and local contexts, which may be relevant 
depending on the scope of the action, consistent with the current 
regulations as well as the 1978 regulations. Third, agencies should 
consider the duration of the potential effects and whether they are 
anticipated to be short- or long-term. To that end, CEQ proposes to 
move and revise text providing that the consideration of short- and 
long-term effects is relevant to the context of a proposed action from 
current 40 CFR 1501.3(b)(2)(i) to paragraph (d)(1).
    The 2020 rule narrowed the ``context'' consideration to the 
potentially affected environment in determining significance, stating 
that this reframing relates more closely to physical, ecological, and 
socio-economic aspects of the environment.\59\ CEQ has reconsidered 
this approach and now finds it to be overly limiting. Agencies have 
decades of experience analyzing their actions within this broader 
framing of ``context.'' Moreover, this use of ``context'' is consistent 
with CEQ's 2022 reinstatement of the concepts of indirect and 
cumulative effects. Additionally, the 2020 rule's tying of significance 
to the affected environment, ``usually'' only in the local area,\60\ 
could be read as deemphasizing reasonably foreseeable effects beyond 
the immediate area of the action. The appropriate environment is the 
one that the agency has identified as the affected environment in Sec.  
1502.15, which can include the global, national, regional, and local 
environment. For example, leases for oil and gas extraction or natural 
gas pipelines have local effects, but also have reasonably foreseeable 
global indirect and cumulative effects related to GHG emissions.
---------------------------------------------------------------------------

    \59\ 2020 Final Rule, supra note 36, at 43322.
    \60\ 40 CFR 1501.3(b)(1) (``For instance, in the case of a site-
specific action, significance would usually depend only upon the 
effects in the local area.'') (emphasis added).
---------------------------------------------------------------------------

    CEQ also proposes to reinstate ``intensity'' as a consideration in 
determining significance, which CEQ reframed in the 2020 rule as the 
``degree'' of the action's effects. In Sec.  1501.3(d)(2), CEQ proposes 
to require agencies to assess the intensity of effects from an action 
and to provide a list of factors, some or all of which may apply to any 
given action, for agencies to consider in relation to one another, 
returning to the approach from 1978. In 2020, CEQ justified the removal 
of intensity as a consideration in part

[[Page 49936]]

based on the proposition that effects are not required to be intense or 
severe to be considered significant.\61\ However, the intensity factors 
that CEQ proposes to reinstate with modifications have long provided 
agencies with guidance in how the intensity of an action's effects may 
inform the significance determination. CEQ does not consider 
``intense'' to be a synonym for ``significant;'' rather, it points to 
factors to inform the determination of significance that are part of 
longstanding agency practice. CEQ also proposes to clarify that 
agencies should focus on adverse impacts in determinations of 
significance. This is consistent with NEPA's policies and goals as set 
forth in section 101 of the statute. 42 U.S.C. 4331.
---------------------------------------------------------------------------

    \61\ 2020 Final Rule, supra note 36, at 43322.
---------------------------------------------------------------------------

    Paragraph (d)(2)(i) would mirror the 1978 rule's reference to 
beneficial effects with clarifying additions. CEQ proposes to state 
that only actions with significant adverse effects require an EIS. This 
is distinct from weighing beneficial effects against adverse effects to 
determine that an action's effects on the whole are not significant. 
Rather, this statement reflects the fact that an action with only 
beneficial effects and no significant adverse effects does not require 
an EIS, consistent with CEQ's proposed revisions to Sec.  1501.3(d)(2), 
regarding the meaning of intensity.
    CEQ proposes to add to paragraph (d)(2)(i) clarification that 
agencies should consider the duration of effects and provide an example 
of an action with short-term adverse effects but long-term beneficial 
effects. While significant adverse effects may exist even if the agency 
considers that on balance the effects of the action will be beneficial, 
the agency should consider any related short- and long-term effects in 
the same effect category together in evaluating intensity. For example, 
an agency should consider short-term construction-related GHG emissions 
from a renewable energy project in light of long-term reductions in GHG 
emissions when determining the overall intensity of effects. In this 
situation, the agency could reasonably determine that the climate 
effects of the proposed action would not be significantly adverse, and 
therefore an EIS would not be required. As another example, a forest 
restoration project may have a short-term adverse effect to a species 
by displacing it from the area while the project is carried out but 
have long-term beneficial effects to the species by reducing the risk 
that a severe wildfire will destroy the habitat altogether. An agency 
should consider both of these effects in assessing whether the action 
significantly affects the species, and may determine that the overall 
effects on the species would not be significantly adverse and therefore 
would not require an EIS.
    In paragraph (d)(2)(ii), CEQ proposes to make a clarifying edit to 
the factor relating to the action's effects on health and safety by 
adding language indicating that the relevant consideration is ``the 
degree to which'' the proposed action may ``adversely'' affect public 
health and safety.
    CEQ proposes to add in paragraph (d)(2)(iii) a factor to consider 
the degree to which the proposed action may adversely affect unique 
characteristics of the geographic area such as historic or cultural 
resources, Tribal sacred sites, parkland, and various types of 
ecologically sensitive areas. This would reinstate a factor from the 
1978 regulations, with clarifying edits, which agencies have considered 
for decades. As noted earlier in this section, CEQ proposes to use the 
wording from the 1978 factor on unique characteristics because it is a 
context consideration. Consideration of this factor is consistent with 
both the definition of effects (Sec.  1508.1(g)) and the policies and 
goals of NEPA. 42 U.S.C. 4331.
    In paragraph (d)(2)(iv), CEQ proposes to make a clarifying edit to 
the factor in 40 CFR 1501.3(b)(2)(iv) relating to actions that may 
violate Federal, State, Tribal, or local law by adding reference to 
``other requirements.'' CEQ also proposes to include inconsistencies 
with policies designed for protection of the environment because 
agencies should not necessarily limit their inquiry to statutory 
requirements. Of course, it may be appropriate to give relatively more 
weight to whether the action threatens a law imposed for environmental 
protection as opposed to a policy, but policies imposed for the 
protection of clean air, clean water, or species conservation, for 
example, may nonetheless be relevant in evaluating intensity. CEQ 
invites comment on the inclusion of policies in this provision and 
whether the regulations should reference specific categories of 
policies.
    Next, CEQ proposes to add paragraph (d)(2)(v) to consider the 
degree to which effects are highly uncertain. The 1978 regulations 
included factors for ``controversial'' effects and those that are 
``highly uncertain or involve unique or unknown risks.'' CEQ proposes 
to restore a modified version of this concept that makes clear that the 
uncertainty of an effect is the appropriate consideration, and not 
whether an action is controversial. While a legitimate disagreement on 
technical grounds may relate to uncertainty, this approach would make 
clear that public controversy over an activity or effect is not a 
factor for determining significance.
    CEQ proposes to add a factor to paragraph (d)(2)(vi) regarding the 
action's relationship with other actions. This would reinstate a factor 
from the 1978 regulations and reinforce the consideration of the scope 
of the action that agencies should consider in a NEPA document--that an 
agency cannot avoid significance by terming an action temporary when it 
is in fact a part of a repeating or ongoing action or segmenting it 
into smaller parts. This longstanding NEPA principle is consistent with 
decades of case law prohibiting the segmentation of actions. See, e.g., 
Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985); Kern v. U.S. Bureau 
of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002).
    CEQ proposes to add a factor to paragraph (d)(2)(vii) relating to 
actions that would affect historic resources listed or eligible for 
listing in the National Register of Historic Places. This would 
generally reinstate a factor from the 1978 regulations, which agencies 
have decades of experience considering. Consideration of this factor 
furthers the policies and goals of NEPA, including to ``preserve 
important historic, cultural, and natural aspects of our national 
heritage . . . .'' 42 U.S.C. 4331.
    CEQ proposes to add paragraph (d)(2)(viii) to include effects on an 
endangered or threatened species or its habitat, including critical 
habitat under the Endangered Species Act. 16 U.S.C. 1532(5). This would 
be an expansion of an intensity factor from the 1978 regulations, which 
only addressed critical habitat. CEQ's proposed revision would clarify 
that agencies should consider effects to the habitat of endangered or 
threatened species even if it has not been designated as critical 
habitat.
    CEQ proposes to add paragraph (d)(2)(ix) to include consideration 
of the degree to which the action may have disproportionate and adverse 
effects on communities with environmental justice concerns. Evidence 
continues to accumulate that communities with environmental justice 
concerns often experience disproportionate environmental burdens such 
as pollution or urban heat stress, and often experience 
disproportionate health and other socio-economic burdens that make them 
more susceptible to adverse effects.
    Finally, CEQ proposes to add paragraph (d)(2)(x) to include effects

[[Page 49937]]

upon the rights of Tribal Nations reserved through treaties, statutes, 
or Executive Orders. This proposed addition would clarify that agencies 
should consider how an action may impact the reserved rights of Tribal 
Nations. Tribes' ability to exercise these rights often depends on 
protection of the resources that support the rights, and agencies 
should consider impacts to such resources. CEQ specifically seeks 
comments from Tribes on this proposed addition.
    CEQ invites comments on whether there are other considerations that 
should be added to the regulations to guide agency evaluation of the 
context and intensity of an effect as part of a determination of 
significance.
3. Categorical Exclusions (Sec.  1501.4)
    CEQ proposes revisions to Sec.  1501.4 to clarify this provision, 
which the 2020 rule added, and provide agencies new flexibility to 
establish CEs using additional mechanisms and flexibilities outside of 
their NEPA procedures to promote more efficient and transparent 
development of CEs that may be tailored to specific environmental 
contexts or project types.
    First, CEQ proposes to edit Sec.  1501.4(a) for consistency with 
and add a cross reference to Sec.  1507.3(c)(8), which currently 
requires agencies to establish CEs in their NEPA procedures. This 
revision would more fully and accurately reflect the purposes of and 
requirements for CEs. As is reflected in the regulations, CEQ views CEs 
to be an important mechanism to promote efficiency in the NEPA process 
where agencies have long exercised their expertise to identify and 
substantiate categories of actions that normally do not have a 
significant effect on the human environment.
    CEQ also proposes to add the clause ``individually or in the 
aggregate'' to Sec.  1501.4(a)'s description of CEs. This proposal 
would clarify that when establishing a CE in its procedures, an agency 
must determine that the application of the CE to a single action and 
the repeated collective application to multiple actions would not have 
significant effects on the human environment. This clarification 
recognizes that agencies often use CEs multiple times over many years. 
This change is consistent with the definition of ``categorical 
exclusion'' provided by section 111(1) as a ``category of actions,'' 
which highlights the manner in which CEs consider an aggregation of 
individual actions. This change is similar to the 1978 regulations' 
definition of CEs as categories of actions that do not ``individually 
or cumulatively'' have significant effects, which the 2020 rule removed 
consistent with its removal of the term ``cumulative impacts'' from the 
regulations. The Phase 1 rulemaking reinstated cumulative effects to 
the definition of ``effects,'' \62\ so the 2020 rule's justification 
for removing the phrase no longer has a basis. However, CEQ proposes to 
use the phrase ``in the aggregate'' rather than ``cumulatively'' to 
avoid potential confusion. Cumulative effects refer to the incremental 
effects of an agency action added to the effects of other past, 
present, and reasonably foreseeable actions. In the context of 
establishing CEs, agencies must consider both the effects of a single 
action as well as the aggregation of effects from anticipated multiple 
actions covered by the CE such that the aggregate sum of actions 
covered by the CE does not normally have a significant effect on the 
human environment. As part of this analysis, agencies consider the 
effects--direct, indirect, and cumulative--of the individual and 
aggregated actions. Because the definition of effects includes 
cumulative effects, CEQ considers the phrase ``in the aggregate'' to 
more clearly define what agencies must consider in establishing a CE--
the full scope of direct, indirect, and cumulative effects of the 
category of action covered by the CE. Agencies have flexibility on how 
to evaluate whether the ``aggregate'' of actions covered by a CE will 
not ordinarily have significant effects and may consider the manner in 
which the agency's extraordinary circumstances may avoid multiple 
potential actions having reasonably foreseeable significant effects in 
the aggregate. As discussed further in section II.I.2 CEQ notes that 
agencies do not need to evaluate the environmental effects of 
establishing the CE itself, but rather define the category of action 
and demonstrate in its substantiation that the CE does not normally 
have significant effects in the absence of extraordinary circumstances. 
CEQ proposes to add a qualifying clause at the end of the sentence to 
reference extraordinary circumstances consistent with Sec.  1501.4(b), 
and add a definition of ``extraordinary circumstances'' at Sec.  
1508.1(m). These provisions are consistent with longstanding practice 
and recognize that, as the definition provided by section 111(1) 
indicates, CEs are a mechanism to identify categories of actions that 
normally do not have significant environmental effects. Extraordinary 
circumstances serve to identify actions within a category of actions 
the effects of which exceed those normally associated with that 
category of action and therefore, do not fall within the bounds of the 
CE.
---------------------------------------------------------------------------

    \62\ Phase 1 Final Rule, supra note 47, at 23469.
---------------------------------------------------------------------------

    Finally, CEQ also proposes to add at the end of paragraph (a) 
language clarifying that agencies may establish CEs individually or 
jointly with other agencies. In such cases, agencies may use a shared 
substantiation document and list the CEs in both agencies' NEPA 
procedures or identify them through another joint document as provided 
for by proposed Sec.  1501.4(c). CEQ proposes this addition to provide 
an additional mechanism for establishing CEs transparently and with 
appropriate public process. Agencies may find value in establishing a 
CE jointly for activities that they routinely work on together where 
having a CE would create efficiency in project implementation. Agencies 
also may save administrative time by establishing CEs jointly.
    CEQ proposes edits to Sec.  1501.4(b)(1) to clarify the standard 
for applying a CE to a proposed action where extraordinary 
circumstances exist: an agency may apply a CE if the agency determines 
that a proposed action does not have the potential to result in 
significant effects, or the agency modifies the proposed action to 
address the extraordinary circumstance. This standard is consistent 
with agency practice and has been upheld in case law. As currently 
drafted, 40 CFR 1501.4(b)(1) could be construed to mean that agencies 
may mitigate extraordinary circumstances that would otherwise have the 
potential for significant effects and thereby apply a CE with no 
opportunity for public review or engagement on such actions. While the 
2020 Response to Comments sought to distinguish ``circumstances that 
lessen the impacts'' from required mitigation to address significant 
effects,\63\ based on CEQ's discussions with agency representatives and 
stakeholders, the potential for confusion remains. CEQ's proposed 
standard makes clear that if an extraordinary circumstance exists, an 
agency must make an affirmative determination that there is no 
potential for significant effects in order to apply a CE. If it finds 
such potential it must either: (1) modify its proposed action in a way 
that will address the extraordinary circumstance, or (2) prepare an EA 
or EIS.
---------------------------------------------------------------------------

    \63\ CEQ, Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act Final Rule 
Response to Comments 130 (June 30, 2020) (``2020 Response to 
Comments''), https://www.regulations.gov/document/CEQ-2019-0003-720629.
---------------------------------------------------------------------------

    CEQ also proposes to add a documentation requirement in these

[[Page 49938]]

instances where an agency is applying a CE notwithstanding 
extraordinary circumstances. CEQ also proposes to add language 
encouraging agencies to publish such documentation. While not required, 
CEQ encourages agencies to publish documentation of instances where an 
agency is applying a CE notwithstanding extraordinary circumstances to 
provide transparency to the public of an agency determination that 
there is no potential for significant effects. The proposed language 
responds to feedback from the public requesting such transparency. CEQ 
invites comment on whether it should require agencies to publish such 
documentation.
    In addition, CEQ proposes to add a new Sec.  1501.4(c) to provide 
agencies more flexibility to establish CEs outside of their NEPA 
procedures. This provision would allow agencies to establish CEs 
through a land use plan, a decision document supported by a 
programmatic EIS or EA, or other equivalent planning or programmatic 
decisions. Once established, agencies could apply CEs to future actions 
addressed in the program or plan, including site-specific or project-
level actions. CEQ anticipates that expanding the mechanisms through 
which agencies may establish CEs will encourage agencies to conduct 
programmatic and planning reviews, increase the speed with which 
agencies can establish CEs while ensuring public participation and 
adequate substantiation, promote the development of CEs that are 
tailored to specific contexts, geographies, or project-types, and allow 
decision makers to consider the cumulative effects of related actions 
on a geographic area over a longer time frame than agencies generally 
consider in a review of a single action. This provision would not 
require agencies to establish CEs through the mechanism added in Sec.  
1501.4(c) but rather would provide new options for agencies to 
consider. CEQ also notes that this mechanism does not preclude agencies 
from conducting and relying on programmatic analyses in making project-
level decisions consistent with Sec.  1501.11. Additionally, it does 
not require agencies to conduct a NEPA analysis to establish CEs 
generally, consistent with Sec.  1507.3(c)(8).
    Establishing a CE through this alternative approach could be 
beneficial by providing agencies with more flexibility on how to 
identify categories of actions that normally will not have significant 
effects and establishing a CE for them. A programmatic EIS supporting a 
program decision or land use plan could, for example, provide the 
analysis necessary to substantiate a new CE established by the 
associated decision document that makes sense in the context of the 
overall program decision or land use plan. For example, a land 
management agency could consider establishing a CE for zero or minimal 
impact resilience-related activities. Enabling an agency to establish a 
CE through this mechanism would reduce duplication of effort by 
obviating the need for the agency to revise their NEPA procedures 
consistent with Sec.  1507.3 after completing the programmatic EIS. 
Agencies also may find it efficient to establish a CE through a land 
use planning process rather than undertaking a separate process to 
establish the CE via agency procedures after completion of the land use 
planning process.
    Paragraphs (c)(1) through (c)(6) would set forth the requirements 
for the establishment of CEs through mechanisms other than an agency's 
NEPA procedures. Paragraphs (c)(1) and (c)(2) would require agencies to 
provide CEQ an opportunity to review and comment and provide 
opportunities for public comment. Agencies may satisfy the requirement 
for notification and comment under paragraph (c)(2) by incorporating 
the proposed CEs into any interagency and public review process that 
involves notice and comment opportunities applicable to the relevant 
programmatic or planning document.
    Proposed paragraphs (c)(3) and (c)(4) would include the same 
requirements for agencies to substantiate CEs and provide for 
extraordinary circumstances when they establish CEs under this section 
as when they establish CEs through their agency NEPA procedures 
pursuant to Sec.  1507.3. Specifically, first, agencies would have to 
substantiate their determinations that the category of actions covered 
by a CE normally will not result in significant effects, individually 
or in the aggregate. Second, agencies would need to identify 
extraordinary circumstances. This could be the same list set forth in 
the agency's NEPA procedures, a list specific to this set of CEs, or a 
combination of both. While agencies would need to satisfy these 
requirements in a manner consistent with the establishment of CEs under 
Sec.  1507.3, agencies could document their compliance with these 
requirements in the relevant programmatic or planning documents.
    Proposed paragraph (c)(5) would direct agencies to establish a 
process for determining that a CE applies to a specific action in the 
absence of extraordinary circumstance, or determine the CE still 
applies notwithstanding the presence of extraordinary circumstances. 
Finally, paragraph (c)(6) would direct agencies to maintain a list of 
all such CEs on their websites, similar to the requirement for agencies 
to publish CEs established in their agency NEPA procedures consistent 
with Sec. Sec.  1507.3(b)(2) and 1507.4(a). Agency websites should 
clearly link the CEs to their underlying programmatic or planning 
documents. Additionally, agencies may want to incorporate CEs 
established through these mechanisms into their agency NEPA procedures 
during a subsequent revision. CEQ encourages agencies to list all 
agency CEs in one location, regardless of how the agency established 
the CE, so that the public can easily access the full list of an 
agency's CEs.
    Proposed Sec.  1501.4(d) would identify a list of examples of 
features agencies may want to consider including when establishing CEs, 
regardless of what mechanism they use to do so. Paragraph (d)(1) would 
note that CEs may cover specific geographic areas or areas that share 
common characteristics, such as a specific habitat type for a given 
species.
    To promote experimentation and evaluation, paragraph (d)(2) would 
indicate that agencies may establish CEs for a limited duration. Doing 
so would enable agencies to narrow the scope of analysis necessary to 
substantiate that a class of activities normally will not have a 
significant environmental effect where uncertainty exists about changes 
to the environment that may occur later in time that could affect the 
analysis. As with all CEs, agencies should review their continued 
validity periodically, consistent with CEQ's proposed review timeframe 
in Sec.  1507.3(c)(9). Once the limited duration threshold is met, 
agencies could either consider the CE expired, conduct additional 
analysis to create a permanent CE, or reissue the CE for a new period.
    Paragraph (d)(3) provides that a CE may include mitigation measures 
to address potential significant effects. A CE that includes mitigation 
is different than an agency modifying an action to avoid an 
extraordinary circumstance that would otherwise require preparation of 
an EA or EIS. Paragraph (d)(3) makes clear that an agency may establish 
a CE for a class of activities that include mitigation requirements as 
part of the CE application. Agencies would implement the activities 
covered by the CE as well as the mitigation incorporated into those 
activities as part of the CE. As an illustrative example, an agency 
could conclude that, as a category, a type of activity that degrades 
five acres of habitat will not ordinarily have significant effects 
where five acres

[[Page 49939]]

of equivalent habitat are effectively restored or conserved elsewhere. 
As another example, a CE could allow for vegetation management 
activities but require specific mitigation if a certain habitat type is 
disturbed, such as implementing vegetation activities on 10 acres of 
sage grouse habitat and requiring restoration or compensatory 
mitigation for an equivalent 10 acres of sage grouse habitat. Where an 
agency establishes a CE with a mitigation requirement, the agency would 
need to include such mitigation in their proposed actions in order for 
the CE to apply.
    Paragraph (d)(4) would provide that agencies can include criteria 
for when a CE might expire, such that, if such criteria were present, 
the agency could no longer apply that CE. For example, an agency could 
establish a CE for certain activities up to a threshold, such as a 
specified number of acres or occurrences. Once the agency applied that 
CE up to the threshold number of proposed actions, the agency could no 
longer use the CE. An agency might set an expiration date or threshold 
where their record indicates a potential for significant effects after 
a certain number of applications of the CE to proposed actions; where 
there is uncertainty beyond that threshold; or where it is unclear how 
widely the agency would apply the CE. In other situations, an agency 
may want to make a CE time limited because its authority over the 
actions is likewise time limited.
    Finally, CEQ proposes to strike the provision that would allow an 
agency to establish a process in its agency NEPA procedures to apply a 
CE listed in another agency's NEPA procedures in 40 CFR 1507.3(f)(5) 
and replace it with a provision in Sec.  1501.4(e) that is consistent 
with the process for adoption established by section 109 of NEPA. While 
section 109 uses the term ``adopt'' CEQ is proposing to use ``apply'' 
to distinguish this provision from the longstanding use of ``adoption'' 
in the CEQ regulations to refer to an agency's reliance on another 
agency's previously completed analysis, including the determination 
that a CE applies to a proposed action.
    First, paragraph (e)(1) would require the borrowing agency to 
identify the proposed action or category of proposed actions that falls 
within the CE. In instances where an agency would like to use the CE on 
a long-term basis, CEQ encourages agencies to establish the CE either 
in their own procedures or through the process set forth in Sec.  
1501.4(c). However, this provision would serve as an important bridge 
when agencies are implementing new programs where they have not yet 
established relevant CEs or when existing programs begin to undertake 
new categories of actions but where other agencies have experience with 
similar actions and have established a CE for those actions. In these 
circumstances, the agency could immediately begin to implement the new 
programs and new activities based on another agencies CE for similar 
actions without the need to first develop a CE to cover them. CEQ also 
notes that, consistent with the requirement of section 109(2) that an 
agency consult with ``the agency that established the categorical 
exclusion,'' this provision would only apply to CEs established 
administratively by the agency, including those that Congress directs 
agencies to establish administratively, but not those CEs created by 
statute. While CEQ encourages agencies to include legislative CEs 
established by statute in their NEPA procedures to provide 
transparency, they are not ``established'' by the agency, but rather by 
Congress. CEQ invites comment on this approach.
    Second, under paragraph (e)(2), the borrowing agency would consult 
with the agency that has the listed CE to ensure application of the CE 
is appropriate. Third, under paragraph (e)(3), the borrowing agency 
would evaluate for extraordinary circumstances, consistent with Sec.  
1501.3(b) to incorporate the process for documenting use of the CE when 
extraordinary circumstances are present, but application of the CE is 
still appropriate. Finally, under paragraphs (e)(4) and (e)(5), the 
borrowing agency would document application of the CE, provide public 
notice of the CE that the agency plans to use, and publish the 
documentation of the application of the CE. Neither the statute or the 
proposed regulation requires the agency to accept comment on the public 
notice of the CE that the agency plans to use. In cases where an agency 
is applying CEs to a category of actions, the agency could conduct a 
single consultation and publish a consolidated notice, for example. CEQ 
invites comment on its proposed process. CEQ invites comment on whether 
the regulations implementing section 109 should include additional 
provisions to facilitate the use of CEs while ensuring CEs are not used 
improperly to authorize actions that have reasonably foreseeable 
significant effect.
    CEQ notes that there has been some confusion regarding the 
difference between the use or borrowing of another agency's CE proposed 
in Sec.  1501.4(e), which section 109 of NEPA refers to as adoption and 
is currently provided by 40 CFR 1507.3(f)(5) and adoption of a CE 
determination under Sec.  1506.3(d). In the latter case of adoption of 
a CE determination, an agency with a CE has applied the CE to its own 
proposed action. A second agency then adopts that determination for the 
second agency's action that is substantially the same. Under Sec.  
1501.4(e), an agency may use a CE from another agency that has not 
itself determined that the CE applies to an action. In such 
circumstances, an agency would be borrowing the CE of another agency 
and applying it to a new, separate action, rather than adopting a CE 
determination for an action that is substantially the same.
4. Environmental Assessments (Sec.  1501.5)
    CEQ proposes to revise Sec.  1501.5 for consistency with sections 
106(b)(2) and 107(e)(2) of NEPA, and to provide greater clarity to 
agencies on the requirements that apply to the preparation of EAs and 
to codify agency practice. CEQ proposes edits to address what agencies 
must discuss in an EA, how agencies should consider public comments 
they receive on draft EAs, what page limits apply to EAs, and what 
other requirements in the CEQ regulations agencies should apply to EAs.
    Regarding the contents of an EA, CEQ proposes to split 40 CFR 
1501.5(c)(2), which requires an EA to briefly discuss the purpose and 
need for the proposed action, alternatives, and effects, into 
paragraphs (c)(2)(i) through (iii) to improve readability and provide a 
clearly defined list of requirements. This formatting change would make 
it easier for the public and the agencies to ascertain whether an EA 
includes the necessary contents. For example, when an agency develops 
an EA for a proposal involving unresolved conflicts concerning 
alternative uses of available resources, section 102(2)(H) requires an 
analysis of alternatives, which will generally require analysis of one 
or more reasonable alternatives, in addition to a proposed action and 
no action alternative. 42 U.S.C. 4332(2)(H).
    CEQ proposes to move from 40 CFR 1501.5(c)(2) into its own 
paragraph at Sec.  1501.5(c)(3) the requirement for EAs to list the 
agencies and persons consulted in the development of the EA. CEQ also 
proposes to clarify in this paragraph that agencies include Federal 
agencies as well as State, Tribal, and local governments and agencies. 
CEQ also proposes to add in paragraph (c)(4) a requirement that the EA 
include a unique identification number that can be used for tracking 
purposes that

[[Page 49940]]

would then be carried forward to all other documents related to the 
environmental review of the action, including the FONSI. Identification 
numbers can help the public and agencies track the progress of an EA 
for a specific action as it moves through the NEPA process and may 
allow for more efficient and effective use of technology such as 
databases. CEQ also is proposing a similar requirement for EISs in 
Sec.  1502.4(e)(9).
    To reflect current agency practice and provide the public with a 
clearer understanding about potential public participation 
opportunities with respect to EAs, CEQ proposes to add a new paragraph 
(e) that provides that if an agency chooses to publish a draft EA, it 
must invite public comment on the draft and consider those comments 
when preparing a final EA. This provision reflects the fact that one of 
the primary purposes for which agencies choose to prepare draft EAs is 
to enable public participation. Codifying this practice will enhance 
the public's understanding of the NEPA process and meaningful public 
engagement and does not restrict agency discretion over whether to 
choose to prepare a draft EA for public comment. CEQ would redesignate 
the current 40 CFR 1501.5(e) and (f) to Sec.  1501.5(f) and (g) 
respectively.
    CEQ also proposes to revise Sec.  1501.5(g) to dispense with the 
requirement for senior agency official approval to exceed 75 pages, not 
including any citations or appendices, for consistency with section 
107(e)(2) of NEPA.
    CEQ proposes to add paragraph (h) to clarify that agencies may 
reevaluate or supplement an EA if a major Federal action remains to 
occur and the agency considers it appropriate to do so. Paragraph (h) 
also would provide that agencies may reevaluate an environmental 
assessment or otherwise document a finding that changes to the proposed 
action or new circumstances or information relevant to environmental 
concerns are not substantial, or the underlying assumptions of the 
analysis remain valid. CEQ adds this to clarify that an agency may 
apply the provisions at Sec.  1502.9 regarding supplemental EISs to a 
supplemental EA to improve efficiency and effectiveness.
    Finally, CEQ proposes to clarify the provisions that agencies 
should or may apply to EAs. In a new paragraph (i), CEQ proposes to 
clarify that agencies generally should apply the provisions of Sec.  
1502.21 regarding incomplete or unavailable information and Sec.  
1502.23 regarding scientific accuracy. The 2020 regulations added these 
as provisions agencies ``may apply;'' however, on reflection, CEQ 
considers it important to disclose where information is incomplete or 
unavailable, and ensure scientific accuracy for all levels of NEPA 
review, not just EISs. Then, CEQ proposes to provide in paragraph (j) 
that agencies may apply the other provisions of parts 1502 and 1503 
where they consider it appropriate to improve efficiency and 
effectiveness of EAs. This provision includes a list of example 
provisions where this might be the case--scoping (Sec.  1502.4), cost-
benefit analysis (Sec.  1502.22), environmental review and consultation 
requirements (Sec.  1502.24), and response to comments (Sec.  1503.4).
5. Findings of No Significant Impact (Sec.  1501.6)
    CEQ proposes two revisions to Sec.  1501.6 on findings of no 
significant impact (FONSIs) to clarify the 2020 rule's codification of 
the longstanding agency practice of relying on mitigated FONSIs in 
circumstances where the agency incorporates mitigation into the 
proposed action to reduce its effects below significance. This is an 
important efficiency tool for NEPA compliance because it expands the 
circumstances in which an agency may prepare an EA and reach a FONSI, 
rather than preparing an EIS, consistent with the requirements of NEPA.
    Paragraph (a) currently describes that an agency prepares a FONSI 
when it determines, as a result of an EA, not to prepare an EIS because 
the proposed action will not have significant effects. At the end of 
paragraph (a), CEQ proposes to clarify that agencies can prepare a 
mitigated FONSI if the action will include mitigation to avoid the 
significant effects that would otherwise occur or minimize or 
compensate for them to the point that the effects are not significant. 
So long as the agency can conclude that effects will be insignificant 
in light of mitigation, the agency can issue a mitigated FONSI. CEQ 
considers this an important clarification for consistency with the 
language in Sec.  1501.6(c). Codification of these best practices also 
aligns with guidance CEQ has issued on appropriate use of mitigation, 
monitoring, and mitigated FONSIs.\64\
---------------------------------------------------------------------------

    \64\ CEQ, Appropriate Use of Mitigation and Monitoring and 
Clarifying the Appropriate Use of Mitigated Findings of No 
Significant Impact (Jan. 14, 2011), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
---------------------------------------------------------------------------

    Paragraph (c) currently addresses what an agency must include in a 
FONSI regarding mitigation. The text provides that when an agency 
relies on mitigation to reach a FONSI, the mitigated FONSI must state 
the enforceable mitigation requirements or commitments that avoid the 
potentially significant effects. CEQ proposes to clarify in the second 
sentence that the FONSI must state the enforceable mitigation 
requirements or commitments, as well as the authorities for them, since 
they must be enforceable for agencies to reach a mitigated FONSI. CEQ 
proposes this change because, where a proposed action evaluated in an 
EA may have significant effects, and an agency is not preparing an EIS, 
the FONSI must include mitigation of the significant effects. At the 
end of paragraph (c), CEQ proposes additional language to provide 
additional details on what is needed to demonstrate that mitigation 
requirements or commitments are enforceable. Specifically, the proposed 
language would direct agencies to identify the authority that is being 
exercised to make the mitigation enforceable.
    Finally, as discussed in section II.G.2, CEQ proposes to add a new 
sentence at the end of paragraph (c) to require a monitoring and 
compliance plan when the EA relies on mitigation as a component of the 
proposed action and incorporates the mitigation into the FONSI, 
consistent with proposed Sec.  1505.3(c). These changes will help 
effectuate NEPA's purpose as articulated in section 101, including to 
``attain the widest range of beneficial uses of the environment without 
degradation, risk to health or safety, or other undesirable and 
unintended consequences'' and to ``preserve important historic, 
cultural, and natural aspects of our national heritage . . . .'' 42 
U.S.C. 4331(b).
6. Lead Agency; Cooperating Agencies (Sec. Sec.  1501.7 and 1501.8)
    CEQ proposes to eliminate the reference to ``complex'' 
environmental assessments. The 2020 rule added this term without 
definition. CEQ invites comment on whether it should retain a complex 
EA in the regulations, and if so, how CEQ should define a complex EA.
    CEQ proposes to retitle Sec.  1501.7 ``Lead Agency'' to align with 
section 107(a) of NEPA. CEQ proposes to revise paragraph (b) regarding 
joint lead agencies for consistency with section 107(a)(1)(B) of NEPA 
to clarify that the participating Federal agencies may designate a 
Federal, State, Tribal, or local agency as a joint lead agency upon 
invitation to and acceptance by such agency. CEQ includes Federal 
agencies in the list of potential joint lead agencies because there are 
circumstances in which having another

[[Page 49941]]

agency serving as a joint lead agency will enhance efficiency. CEQ does 
not read the text in section 107(a)(1)(B) of NEPA as precluding this 
approach, but rather Congress specified that State, Tribal, and local 
agencies may serve as joint lead agencies because they are ineligible 
to serve as the lead agency. CEQ invites comment on whether it should 
make additional changes to this paragraph.
    CEQ proposes to revise paragraph (c) for consistency with section 
107(a)(1) of NEPA to clarify that the participating Federal agencies 
determine the agency that will be lead and any joint lead agencies, and 
that the lead agency determines any cooperating agencies. This change 
also would make this paragraph consistent with the text in Sec.  
1506.2(c) on joint EISs. In Sec.  1501.7(d), CEQ proposes to revise the 
text for consistency with section 107(a)(5)(B) of NEPA and make a non-
substantive change to replace the phrase ``private person'' with the 
word ``individual'' for consistency with this term's use in other 
sections of the regulations. In paragraph (e), CEQ proposes to revise 
the text for consistency with section 107(a)(4) of NEPA, clarify that 
the 45 days is calculated from the date of the written request to the 
senior agency officials as set forth in Sec.  1501.7(d), and replace 
``persons'' with ``individuals'' for consistency with the rest of 
regulations.
    In paragraph (f), CEQ proposes to revise the text for consistency 
with section 107(a)(5)(D) of NEPA, to change ``within 20 days'' to ``no 
later than 20 days'' in the first sentence, and ``20 days'' to ``40 
days'' and ``determine'' to ``designate'' in the second sentence.
    Currently, 40 CFR 1501.7(g), addressing combined documents, is 
consistent with the text of section 107(b) of NEPA with respect to 
EISs, EAs, and FONSIs. The statute does not address joint RODs. CEQ 
proposes to revise Sec.  1501.7 to add a caveat that agencies must 
issue joint RODs except where it is inappropriate or inefficient to do 
so, such as when an agency has a separate statutory directive, or it 
would take significantly longer to issue a joint ROD than separate 
ones. CEQ recognizes that, in some cases, requiring a joint ROD could 
inadvertently slow the NEPA process down because, for example, agencies 
may have different procedures for issuing authorizations under their 
applicable legal authorities or may need to consider different factors. 
But in other cases, it could improve efficiency by avoiding duplication 
of effort or analysis. Additionally, for consistency with Sec.  1501.5, 
CEQ proposes to add that agencies can jointly determine to prepare an 
EIS if a FONSI is inappropriate.
    In Sec.  1501.7(h)(2), CEQ proposes to add a clause consistent with 
section 107(a)(2)(C) of NEPA requiring the lead agency to give 
consideration to a cooperating agency's analyses and proposals. In the 
existing clause, CEQ proposes to move the qualifier, ``to the extent 
practicable'' to clarify that it only modifies the second clause, and 
change ``proposals'' to ``information'' to make the text consistent 
with Sec.  1501.8(b)(3). Further, the use of ``proposal'' here is 
inconsistent with the definition of ``proposal'' provided in Sec.  
1508.1(cc). CEQ also proposes to remove the reference to jurisdiction 
by law or special expertise as unnecessarily redundant given that the 
definition of ``cooperating agencies'' in Sec.  1508.1(e) incorporates 
those phrases.
    As discussed further in section II.C.8, CEQ proposes to move the 
requirements for schedules and milestones currently in 40 CFR 1501.7(i) 
and (j) to proposed Sec.  1501.10(c) in order to consolidate provisions 
related to deadlines, schedules, and milestones in one section.
    CEQ proposes an addition to Sec.  1501.8 to clarify the meaning of 
the phrase ``special expertise.'' Paragraph (a) provides that a lead 
agency may request an agency with special expertise to serve as a 
cooperating agency. CEQ proposes to clarify in paragraph (a) that 
special expertise can include Indigenous Knowledge. This proposed 
change helps ensure that Federal agencies respect and benefit from 
unique knowledge that Tribal governments may bring to the environmental 
review process. CEQ notes that the Office of Science and Technology 
Policy and CEQ have issued a Guidance Memorandum for Federal 
Departments and Agencies on Indigenous Knowledge,\65\ but does not 
define Indigenous Knowledge. CEQ invites comment on whether it should 
include such a definition in the regulations. Finally, CEQ notes that 
even where a federally recognized Tribe participates as a cooperating 
agency, the agency also may have an obligation to engage in government-
to-government consultation on the proposed action consistent with the 
agency's obligations under E.O. 13175, Consultation and Coordination 
with Indian Tribal Governments.\66\
---------------------------------------------------------------------------

    \65\ Office of Science and Technology Policy and CEQ, Guidance 
for Federal Departments and Agencies on Indigenous Knowledge (Nov. 
30, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf.
    \66\ E.O. 13175, supra note 53.
---------------------------------------------------------------------------

    In paragraph (b)(7), CEQ proposes to strike the second clause 
requiring cooperating agencies to limit their comments to align this 
paragraph with section 107(a)(3) of NEPA. Finally, CEQ invites comment 
on whether it should make any additional changes to these sections to 
promote or improve lead and cooperating agency engagement on the 
preparation of NEPA documents or increase the efficiency of the 
preparation process.
7. Public and Governmental Engagement (Sec.  1501.9)
    CEQ proposes to address public and governmental engagement in a 
revised Sec.  1501.9 by moving and updating 40 CFR 1506.6, ``Public 
involvement,'' to Sec.  1501.9, and moving provisions specific to the 
EIS scoping process to Sec.  1502.4. CEQ proposes these updates to 
continue to provide agencies with flexibility to tailor their 
engagement specific to their programs and actions while also 
maintaining the requirements to engage the public and affected parties 
in the NEPA process. CEQ proposes revisions to Sec.  1501.9 to 
emphasize the importance of creating an accessible and transparent NEPA 
process. CEQ also proposes many of these changes in response to 
feedback on the Phase 1 proposed rule, the 2020 proposed rule, and 
input received from stakeholders and agencies during development of 
this proposed rule. Much of that feedback requested increased 
opportunities for public engagement and increased transparency about 
agency decision making, along with general requests that CEQ elevate 
the importance of public engagement in the NEPA process. Finally, CEQ 
proposes to move the requirements related to public engagement to part 
1501 to emphasize that it is a core component of the NEPA process and 
agency planning, regardless of the level of NEPA analysis being 
undertaken.
    To accomplish this goal, CEQ is proposing changes to multiple 
sections of the regulations. First, CEQ is proposing to move the 
existing provisions of 40 CFR 1501.9 on scoping, specifically 
paragraphs (a), (b), (c), (d), (d)(1) through (8), (f), and (f)(1) 
through (5) to proposed Sec.  1502.4, ``Scoping.'' As discussed in 
sections II.C.2 and II.C.9, CEQ proposes to move the existing 
provisions in 40 CFR 1502.4 on ``Major Federal actions requiring the 
preparation of environmental impact statements'' to Sec. Sec.  1501.3 
and 1501.11. Also, as discussed in section II.C.2, CEQ proposes to move 
the remaining text of existing 40 CFR 1501.9(e) and (e)(1) through (3) 
on the determination of scope to proposed Sec.  1501.3 because

[[Page 49942]]

determining the scope of actions applies to all levels of NEPA review.
    CEQ proposes to retitle Sec.  1501.9 to ``Public and governmental 
engagement'' and accordingly update references to ``public 
involvement'' within this section and throughout the CEQ regulations to 
``public engagement.'' CEQ is proposing this change because the word 
``engagement'' better reflects how Federal agencies should be 
interacting with the public. The word ``engagement'' reflects a process 
that is more interactive and collaborative compared to simply including 
or notifying the public of an action. Engagement is also a common term 
for Federal agencies with experience developing public engagement 
strategies or that work with public engagement specialists. CEQ 
proposes to add ``governmental'' to the title to better reflect the 
description of the provisions proposed to be included in the section, 
which relate to both public and governmental entities.
    Next, CEQ proposes to add paragraphs (a) and (b) to articulate the 
purposes of public and governmental engagement and to identify the 
responsibility of agencies to determine the appropriate methods of 
public and governmental engagement and conduct scoping consistent with 
Sec.  1502.4 for EISs. CEQ proposes to use the phrase ``meaningful'' 
engagement to better describe the purpose of this process because 
public and governmental engagement should not be a mere check-the-box 
exercise, and agencies should conduct engagement with appropriate 
planning and active dialogue or other interaction with stakeholders in 
which all parties can contribute. For example, such engagement can 
inform the potential for significant effects or identify alternatives 
that avoid or reduce effects. Agencies should determine the appropriate 
level of outreach needed to engage meaningfully and effectively with 
affected communities.
    Paragraph (c) would list what actions the lead agency should take 
when conducting outreach for public and governmental engagement. 
Proposed paragraph (c)(1) would recommend agencies invite likely 
affected agencies and governments, and paragraph (c)(2) would recommend 
agencies conduct early engagement with likely affected or interested 
members of the public. CEQ modeled these provisions on the existing 
approaches in 40 CFR 1501.7(a)(1) (2019) and 40 CFR 1501.9(b) (2020) to 
invite early participation of likely affected parties. Paragraph (c)(3) 
would provide flexibility to agencies to tailor engagement strategies, 
considering the scope, scale, and complexity of the proposed action and 
alternatives, the degree of public interest, and other relevant 
factors. CEQ proposes to move from 40 CFR 1506.6(c) to Sec.  
1501.9(c)(3) the requirement that agencies consider the ability of 
affected parties to access electronic media when selecting the 
appropriate methods of notification. CEQ also proposes to add a clause 
to the end of paragraph (c)(3) to require agencies to consider the 
primary language of affected persons when determining the appropriate 
notification methods to use.
    CEQ then proposes to move and modify the rest of 40 CFR 1506.6 to 
proposed Sec. Sec.  1501.9(d), (e), and (f). Specifically, CEQ proposes 
to move the introductory clause of 40 CFR 1506.6 and 40 CFR 1506.6(b), 
including its paragraphs, to Sec.  1501.9(d) and (d)(2), respectively, 
and make minor revisions to improve readability and consistency with 
the rest of Sec.  1501.9, including adding the paragraph heading 
``notification.'' CEQ also proposes in (d)(2) to clarify that agencies 
should make environmental documents available, as appropriate, to help 
inform the public engagement process. CEQ proposes here and throughout 
the CEQ regulations to replace the word ``notice'' with 
``Notification,'' except where ``notice'' is used in reference to a 
Federal Register notice. This proposed change is intended to clearly 
differentiate between those requirements to publish a notice in the 
Federal Register and other requirements to provide notification of an 
activity, which may include a notice in the Federal Register or use of 
other mechanisms.
    CEQ proposes a new paragraph (d)(1) to require agencies to publish 
notification of proposed actions they are analyzing through an EIS. CEQ 
proposes this requirement in response to feedback from multiple 
stakeholders and members of the public requesting more transparency 
about agency proposed actions. Agencies may publish notification 
through websites, email notifications, or other mechanisms such as the 
Permitting Dashboard,\67\ so long as the notification method or methods 
are designed to adequately inform the persons and agencies who may be 
interested or affected, consistent with the definition of ``publish'' 
in Sec.  1508.1(ee). A notice of intent in the Federal Register, 
consistent with Sec.  1502.4(e), can fulfill the notification 
requirement, but agencies also may elect to use additional notification 
methods. CEQ proposes to combine the provisions from 40 CFR 
1506.6(b)(3)(i) and (ii) on notice to State, Tribal, and local 
governments and agencies in proposed Sec.  1501.9(d)(2)(iii)(A) to 
consolidate similar provisions. CEQ also proposes to recommend in 
paragraph (d)(2)(iii)(I) that agencies establish email notification 
lists or similar methods for the public to easily request electronic 
notifications for proposed actions.
---------------------------------------------------------------------------

    \67\ See Fed. Permitting Improvement Steering Council, 
Permitting Dashboard for Federal Infrastructure Projects, https://www.permits.performance.gov/.
---------------------------------------------------------------------------

    As discussed in section II.I.3, CEQ proposes to move the 
requirement for agencies to explain in their NEPA procedures where 
interested persons can get information on EISs and the NEPA process 
from 40 CFR 1506.6(e) to Sec.  1507.3(c)(11) since this is a 
requirement for NEPA procedures, not public engagement. CEQ proposes to 
move the requirements to make EISs available under FOIA from 40 CFR 
1506.6(f) to Sec.  1501.9(d)(3).
    CEQ proposes to delete 40 CFR 1506.6(d) on soliciting information 
from the public because CEQ proposes to include that concept in the 
purpose and language of Sec.  1501.9. CEQ proposes to move 40 CFR 
1506.6(c) on public meetings and hearings to Sec.  1501.9(e), with 
modification, including adding the heading ``Public meetings and 
hearings'' to the paragraph, making minor revisions for clarity, 
consistency, and readability, and adding a phrase to clarify that when 
an agency accepts comments for electronic or virtual meetings, agencies 
must allow the public to submit them electronically or via regular 
mail. CEQ also proposes to add in paragraph (e) a sentence encouraging 
agencies to consider the needs of affected communities when determining 
what format to use for a public hearing or public meeting because the 
best option for the communities involved may vary.
    Finally, CEQ proposes to move 40 CFR 1506.6(a) on public 
involvement for NEPA procedures to new paragraph Sec.  1501.9(f), 
adding a paragraph heading ``Agency procedures'' and changing the word 
``involve'' to ``engage.'' CEQ is proposing to move this provision to 
its own paragraph because engagement in the development of agency NEPA 
procedures does not align with the new title added for paragraph (d) 
and its paragraphs on notification requirements.
    CEQ invites comment on whether and how it can make any additional 
changes to this or other provisions in the regulations to enhance 
community engagement. This could include adding provisions to the NEPA 
regulations to

[[Page 49943]]

further address the responsibilities of the Chief Public Engagement 
Officers proposed in Sec.  1507.2(a) to facilitate community engagement 
across the agency and technical assistance to communities. CEQ welcomes 
other ideas.
8. Deadlines and Schedule for the NEPA Process (Sec.  1501.10)
    CEQ proposes to retitle Sec.  1501.10 to ``Deadlines and schedule 
for the NEPA process'' and revise the section to direct agencies to set 
deadlines and schedules for NEPA reviews to achieve efficient and 
informed NEPA analyses consistent with section 107 of NEPA. The 
proposed changes in this section would improve transparency and 
predictability for stakeholders and the public regarding NEPA reviews.
    In paragraph (a), CEQ proposes edits to emphasize that while NEPA 
reviews should be efficient and expeditious, they also must include 
sound analysis. The proposal would direct agencies to set deadlines and 
schedules tailored to individual or types of proposed actions to 
facilitate meeting the deadlines proposed in Sec.  1501.10(b). 
Consistent with section 107(a)(2)(D) of NEPA, CEQ also proposes in this 
paragraph to require, where applicable, the lead agency to consult with 
and seek concurrence of joint lead, cooperating, and participating 
agencies and consult with project sponsors and applicants when 
establishing and updating schedules.
    CEQ proposes to update paragraph (b) for consistency with section 
107(h) of NEPA. Paragraph (b)(1) would require agencies to complete an 
EA within one year and paragraph (b)(2) would require EIS completion in 
two years unless the lead agency extends the deadline in consultation 
with any applicant or project sponsor and sets a new deadline. In 
circumstances where there is no applicant or project sponsor, the 
consultation requirement is inapplicable to extension of deadlines. 
Paragraph (b)(3) would identify the starting points from which the 
deadline is measured and require agencies to measure from the soonest 
of the three dates identified in section 107(g) of NEPA, as applicable. 
CEQ notes that section 107(g)(3) of NEPA provides a mechanism for 
project sponsors to petition the courts for relief if an agency fails 
to meet the deadlines. Finally, paragraph (b)(4) would require agencies 
to submit the report to Congress on any missed deadlines required by 
section 107(h) of NEPA.
    To enhance predictability, CEQ proposes to add a new paragraph (c), 
which would contain text moved from 40 CFR 1501.7(i) and modified for 
consistency with section 107(a)(2)(D) and (E) of NEPA requiring the 
lead agency to develop schedules for EISs and EAs. The schedule would 
include key milestones for the environmental review process, including 
reviews, permits, and authorizations, and the lead agency would develop 
it in consultation with the applicant or project sponsor and in 
consultation with and seek the concurrence of any joint lead, 
cooperating, and participating agencies. CEQ proposes to allow 
schedules to be tailored to proposed actions and to highlight factors 
that may help agencies set specific schedules to meet the deadlines. 
Finally, CEQ proposes to move to the end of this paragraph text from 40 
CFR 1501.7(j) with modifications, including for consistency with 
section 107(a)(2)(E) of NEPA, and provide clarification to enhance 
interagency communication and issue resolution. The proposed changes 
would require that, when the lead agency or any participating agency 
anticipates a missed milestone, that agency notifies the responsible 
agency (and the lead agency if identified by another agency) and 
request that they take action to comply with the schedule. To emphasize 
the importance of informed and efficient decision making, CEQ proposes 
to require agencies to elevate any unresolved disputes contributing to 
the missed milestone to the appropriate officials for resolution within 
the deadlines for the individual action.
    CEQ proposes to redesignate 40 CFR 1501.10(c) as paragraph (d), 
which addresses factors in setting deadlines, and make changes to the 
text for consistency with the proposed changes to paragraph (b). 
Specifically, CEQ proposes to change the reference to ``deadlines'' to 
add a reference to ``the schedule'' and add a reference to the ``lead 
agency,'' to consider the listed factors in setting schedules. CEQ 
proposes to add an additional factor to (d)(7), redesignating 40 CFR 
1501.10(c)(7) to be paragraph (d)(8), to add the degree to which a 
substantial dispute exists on the proposed action and its effects. This 
would restore and clarify a factor included in the 1978 regulations at 
40 CFR 1501.8(a)(vii) (2019) regarding the degree to which the action 
is controversial. While the 2020 regulations removed this factor 
because it overlapped with other factors, CEQ is proposing to restore 
and clarify it in the list of factors, focusing on substantial disputes 
over the size, location, nature, or consequences of the proposed action 
and its effects. CEQ considers this an important factor that could have 
implications for establishing schedules and milestones. In such 
instances, agencies should seek ways to resolve disputes early in the 
process, including using conflict resolution and other tools, to 
achieve efficient outcomes and avoid costly and time-consuming 
litigation later in the process.
    CEQ proposes to redesignate 40 CFR 1501.10(d) as paragraph (e) and 
require a schedule to include a list of specific milestones. Proposed 
paragraphs (e)(1) through (e)(5) would require EIS schedules to include 
proposed dates for publication of the NOI, issuance of the draft EIS, 
the public comment period, issuance of the final EIS, and issuance of 
the ROD. CEQ proposes to remove paragraphs 40 CFR 1501.10(d)(2), 
(d)(6), and (d)(7) because they are either covered by proposed (e)(1) 
through (e)(3) or unnecessary. CEQ proposes in paragraph (f) and (f)(1) 
through (f)(4) to identify the milestones that agencies must include in 
schedules for EAs.
    CEQ proposes to redesignate 40 CFR 1501.10(e) as paragraph (g). 
Finally, to increase predictability and enhance agency accountability, 
CEQ proposes to strike 40 CFR 1501.10(f) and add a new paragraph (h) to 
require agencies to make schedules for EISs publicly available and to 
publish revisions to the schedule. It also would require agencies to 
publish revisions to the schedule and include an explanation for 
substantial revisions to increase transparency and public understanding 
of decision making and to encourage agencies to avoid unnecessary 
delays.
9. Programmatic Environmental Document and Tiering (Sec.  1501.11)
    CEQ proposes to revise and retitle Sec.  1501.11, ``Programmatic 
environmental document and tiering,'' for consistency with section 108 
of NEPA, to consolidate relevant provisions, and to add new language to 
codify best practices for developing programmatic NEPA reviews and 
tiering, which are important tools to facilitate more efficient 
environmental reviews and project approvals. The revisions to this 
section propose to move portions of 40 CFR 1502.4 on EISs for broad 
Federal actions to proposed Sec.  1501.11 because agencies can review 
actions at a programmatic level in both EAs and EISs. CEQ has 
encouraged agencies to engage in environmental reviews for broad 
Federal actions through the NEPA process since CEQ's initial 
guidelines. This continues to be a best practice for addressing broad 
actions, such as programs, policies, rulemakings, series of projects, 
and larger or multi-phase projects. CEQ developed guidance in 2014 on 
Effective

[[Page 49944]]

Use of Programmatic NEPA Reviews,\68\ compiling best practices across 
the Federal Government on the development of programmatic environmental 
reviews. In this proposed rule, CEQ would codify some of these 
principles.
---------------------------------------------------------------------------

    \68\ Programmatic Guidance, supra note 11.
---------------------------------------------------------------------------

    CEQ proposes to first address programmatic environmental documents 
and then tiering in Sec.  1501.11. Accordingly, CEQ proposes to 
redesignate existing 40 CFR 1501.11(a), (b), and (c), which address 
tiering, to be proposed paragraphs (b), (b)(1), and (b)(2), 
respectively, with some modifications. CEQ proposes to add a new 
paragraph (a) to address programmatic environmental documents. Proposed 
paragraph (a) would encourage the use of programmatic environmental 
documents through an EIS or EA that evaluates the environmental effects 
of policies, programs, plans, or groups of related activities. CEQ 
proposes to move text from 40 CFR 1502.4(b) to Sec.  1501.11(a) and 
revise it to include EAs, providing that programmatic environmental 
documents should be relevant to the agency decisions and timed to 
coincide with meaningful points in agency planning and decision making. 
Finally, paragraph (a) would clarify that agencies can use programmatic 
environmental documents in a variety of ways, highlighting some 
examples for agencies to consider to facilitate better and more 
efficient environmental reviews.
    CEQ proposes to move the list of ways agencies may find it useful 
to evaluate a proposal when preparing programmatic documents from 40 
CFR 1502.4(b)(1) and (b)(1)(i) through (b)(1)(iii) to Sec.  
1501.11(a)(1) and (a)(1)(i) through (a)(1)(iii), respectively, and 
expand the list to apply to environmental documents rather than just 
EISs to encompass EAs. CEQ proposes to modify paragraph (a)(1)(ii) to 
clarify ``[g]enerically'' to mean ``[t]hematically or by sector,'' and 
add technology as an example action type.
    CEQ proposes to add paragraph (a)(2) to provide examples of the 
types of agency actions that may be appropriate for programmatic 
environmental documents, including programs, policies, or plans; 
regulations; national or regional actions; or actions with multiple 
stages and are part of an overall plan or program. CEQ proposes to move 
40 CFR 1502.4(b)(2) to Sec.  1501.11(a)(3) and recommend that agencies 
employ scoping and other tools to describe the relationship between 
programmatic environmental document and related actions to reduce 
duplication. CEQ proposes to strike the last sentence of 40 CFR 
1502.4(b)(2) stating that agencies may tier their analyses because 
tiering and programmatic environmental documents would now be addressed 
together in this section rendering the language unnecessary.
    As referenced earlier in this section, CEQ proposes to redesignate 
the existing paragraphs on tiering to paragraphs (b), (b)(1) and 
(b)(2). CEQ proposes to title paragraph (b) ``Tiering'' and add new 
language to describe when agencies may employ tiering. CEQ proposes to 
strike as redundant the reference to issues not yet ripe for decision 
as well as the last sentence on applying tiering to different stages of 
actions.
    In Sec.  1501.11(b)(1) CEQ proposes to add programmatic 
environmental document to the list of documents from which agencies may 
tier. This paragraph also would clarify that agencies need to discuss 
the relationship between the tiered analysis and the previous review; 
evaluate site-, phase-, or stage-specific conditions and effects; and 
allow for public engagement opportunities that are appropriate for the 
location, phase, or stage.
    Programmatic documents can most effectively address later 
activities when they provide a description of planned activities that 
would implement the program and consider the effects of the program as 
specifically and comprehensively as possible. A sufficiently detailed 
programmatic analysis with such project descriptions can allow agencies 
to rely upon programmatic environmental documents for further actions 
with no or little additional environmental review necessary. When 
conducting programmatic analyses, agencies should engage the public 
throughout the NEPA process and consider when it is appropriate to re-
engage the public prior to implementation of the action.
    In paragraph (c), CEQ proposes to include the provisions in section 
108 of NEPA, which address when an agency may rely on a programmatic 
document in subsequent environmental documents. CEQ notes that it 
interprets the reference to ``judicial review'' in paragraph (c)(1) to 
mean an opportunity for a party to challenge the programmatic document, 
including an administrative proceeding or challenge under the 
Administrative Procedure Act. CEQ invites comment on whether to provide 
additional information in the regulations to clarify this provision. 
CEQ proposes in paragraph (c)(2) to require agencies to briefly 
document their reevaluations when relying on programmatic environmental 
documents older than 5 years. CEQ invites comment on whether and how to 
more closely align this provision with the reevaluation and 
supplementation provisions in Sec. Sec.  1501.5(h) and 1502.9(d).
    CEQ invites comment on any additional changes that would promote 
effective use of programmatic environmental reviews to facilitate 
efficient and non-duplicative subsequent review of project-specific 
actions, including through tiering.
10. Incorporation by Reference Into Environmental Documents (Sec.  
1501.12)
    CEQ proposes minor modifications to Sec.  1501.12 to emphasize the 
importance of transparency and accessibility of material that agencies 
incorporate by reference. CEQ proposes to add a specific requirement 
for agencies to briefly explain the relevance of any material 
incorporated into the environmental document to clarify that agencies 
must do this. CEQ proposes this addition because explaining the 
relevance of incorporated material in addition to summarizing it will 
better inform the decision maker and the public. CEQ encourages 
agencies to integrate the description of relevance into the summary of 
the material. CEQ also proposes to change ``may not'' to ``shall not'' 
to eliminate a potential ambiguity over whether agencies must make 
material they incorporate by reference reasonably available for public 
inspection. CEQ also proposes to add a reference to ``publicly 
accessible website'' as an example of a mechanism for making material 
incorporated by reference available to the public, and clarify that an 
agency may meet this obligation by posting documents on a website. 
Finally, CEQ proposes to add language encouraging agencies to provide 
digital references, such as hyperlinks, to incorporated material or 
otherwise indicate how the public can access the material for 
inspection.

D. Proposed Revisions To Update Part 1502, Environmental Impact 
Statements

    CEQ is proposing revisions to many sections of part 1502. CEQ is 
not proposing any substantive changes to Sec.  1502.3, but is revising 
the section title to read ``Statutory requirements for environmental 
impact statements.'' CEQ is not proposing substantive changes to Sec.  
1502.6, Interdisciplinary preparation; Sec.  1502.13, Purpose and need; 
Sec.  1502.18, List of preparers; Sec.  1502.19, Appendix; Sec.  
1502.20, Publication of the environmental impact statement; Sec.  
1502.22, Cost-benefit analysis; or

[[Page 49945]]

Sec.  1502.24, Environmental review and consultation requirements. CEQ 
invites comment on whether it should make any changes to these sections 
or other changes to part 1502.
    CEQ particularly invites comment on whether it should codify any or 
all of its 2023 GHG guidance, and, if so, which provisions of part 1502 
or other provisions of the regulations CEQ should amend. CEQ proposes 
to incorporate some or all of the 2023 GHG guidance, which would 
require making additional changes in the final rule to codify the 
guidance in whole or part, as is or with changes, based on the comments 
CEQ receives on this proposed rule.\69\
---------------------------------------------------------------------------

    \69\ See 2023 GHG Guidance, supra note 9.
---------------------------------------------------------------------------

1. Purpose (Sec.  1502.1)
    CEQ proposes to divide Sec.  1502.1 into paragraphs (a), (b), and 
(c) to enhance readability and amend the text in the section to restore 
the approach taken in the 1978 regulations regarding the purpose of 
EISs as they relate to NEPA.
    In paragraph (a), CEQ proposes to restore language from the 1978 
regulations clarifying that one purpose of an EIS is to serve as an 
action-forcing device for implementing the policies set out in section 
101 of NEPA by ensuring agencies consider the environmental effects of 
their action in decision making. Congress did not enact NEPA to create 
procedure for procedure's sake; NEPA's procedures serve the substantive 
policies and goals Congress established and restoring the action-
forcing language would clarify how EISs serve this broader function. 
This proposed change is consistent with the proposed edits in Sec.  
1500.1. See section II.B.1.
    In paragraph (b), CEQ proposes minor edits for clarity and 
consistency with other changes proposed throughout the regulations. CEQ 
proposes to change ``It'' to ``Environmental impact statements'' to 
improve readability in light of the proposal to add paragraphs to the 
section. CEQ also proposes to change ``significant'' to ``important'' 
before ``environmental issues'' and insert ``reasonable'' before 
``alternatives'' for consistency with similar phrasing throughout the 
regulations. In paragraph (c), CEQ proposes to restore the 1978 
language clarifying that an EIS is more than a disclosure document and 
that agencies must use EISs concurrently with other relevant 
information to make informed decisions. CEQ considers this language to 
provide important direction to agencies to ensure that EISs inform 
planning and decision making and do not serve as a perfunctory check-
the-box exercise.
2. Implementation (Sec.  1502.2)
    CEQ proposes minor modifications in Sec.  1502.2. First, CEQ 
proposes to restore from the 1978 regulations the introductory 
paragraph directing agencies to prepare EISs to meet the purpose 
established in Sec.  1502.1. Upon reconsideration, CEQ is proposing to 
restore this language that was removed as unnecessary by the 2020 rule 
to provide clarity on the purpose of this section and improve 
readability.
    Next, in paragraph (b) CEQ proposes to replace the word 
``significant'' with ``important'' and add reference to an 
environmental assessment for clarity and consistency. In paragraph (c), 
CEQ proposes to change ``analytic'' to ``analytical,'' and ``project 
size'' to ``the scope and complexity of the action'' since this 
provision is applicable to more than projects, and the length of an EIS 
should be proportional to the scope and complexity of the action 
analyzed in the document.
    CEQ proposes to delete ``as interpreted in'' before ``the 
regulations in this subchapter'' in paragraph (d), for the reasons 
discussed above for making a similar change in section II.B.5. CEQ is 
concerned that this phrase may inappropriately constrain agencies whose 
agency NEPA procedures go beyond the CEQ regulations. Under the 
proposal, EISs must state how alternatives and decisions will or will 
not achieve the requirements of NEPA, the CEQ regulations, and other 
environmental laws and policies. Finally, CEQ proposes to delete the 
word ``final'' in paragraph (f) because there is no distinction between 
a decision and final decision and for consistency with use of 
``decision'' elsewhere in the regulations.
3. Scoping (Sec.  1502.4)
    As discussed in section II.C.7 on Sec.  1501.9, ``Public and 
governmental engagement,'' and Sec.  1501.11, ``Programmatic review and 
tiering,'' CEQ proposes to revise Sec.  1502.4 by retitling it 
``Scoping'' and moving provisions from the current 40 CFR 1501.9 to 
this section. This proposal would move the requirements of scoping for 
EISs to part 1502, which addresses the requirements of EISs, while 
moving requirements for determining the appropriate level of NEPA 
review applicable to all environmental reviews to Sec.  1501.3(b). CEQ 
also proposes to revise the provisions moved from the current 40 CFR 
1501.9 to align scoping with related changes made on public engagement 
in Sec.  1501.9 and to add requirements focused on increasing 
efficiency in the EIS scoping process.
    CEQ has heard from multiple Federal agencies that there is 
uncertainty over the differences between the scoping process required 
for EISs and other public involvement or engagement requirements for 
NEPA reviews more generally. By proposing the revisedSec.  1501.9 on 
public and governmental engagement and moving the scoping provisions to 
Sec.  1502.4, CEQ is emphasizing the importance of public engagement in 
the NEPA process generally, clarifying what requirements are unique to 
EISs, and clarifying what requirements and best practices agencies 
should consider regardless of the level of NEPA review.
    As noted in sections II.C.2 and II.C.9, with the revision of this 
section to address scoping, CEQ proposes to move the existing 
provisions of 40 CFR 1502.4, ``Major Federal actions requiring the 
preparation of environmental impact statements'' to Sec. Sec.  1501.3 
and 1501.11.
    CEQ proposes to move 40 CFR 1501.9(a), outlining the general 
purpose of scoping, to Sec.  1502.4(a) and proposes to change the words 
``significant'' and ``non-significant'' to ``important'' and 
``unimportant,'' respectively, to align with CEQ's proposed change to 
only use the word ``significant'' when describing effects. CEQ intends 
this to be a clarifying, non-substantive change. CEQ proposes to move 
40 CFR 1501.9(c) on scoping outreach to paragraph (b) and add a 
sentence requiring agencies to facilitate notification to persons and 
agencies who may be interested or affected by an agency's proposed 
action, consistent with the public engagement requirements in proposed 
Sec.  1501.9. CEQ proposes to move 40 CFR 1501.9(b) on cooperating and 
participating agencies to paragraph (c) and retitle it ``Inviting 
participation'' to better reflect that the paragraph covers cooperating 
and participating agencies as well as proponents of the action and 
other likely affected or interested persons. CEQ notes that agencies 
invited to serve as cooperating or participating agencies should 
respond in a timely manner to facilitate the inclusion in the NOI any 
information that these agencies may need as part of the scoping 
process.
    CEQ proposes to move 40 CFR 1501.9(f) and (f)(1) through (f)(5) on 
additional scoping responsibilities to paragraph (d) and (d)(1) though 
(d)(5), respectively. Within this list, CEQ proposes modifications to 
paragraph (d)(1) to change ``significant'' to ``important'' to align 
with changes in paragraph (a) and the use of ``significant'' throughout 
the

[[Page 49946]]

regulations, which CEQ intends to be a clarifying, non-substantive 
change.
    CEQ proposes to move the requirements for an NOI from 40 CFR 
1501.9(d) and (d)(1) through (d)(8) to Sec.  1502.4(e) and (e)(1) 
through (e)(8), respectively. CEQ proposes to delete the reference to 
40 CFR 1507.3(f)(3) because CEQ is proposing to remove that provision 
from the regulations, as discussed in section II.I.2. CEQ proposes to 
revise the language in paragraph (e)(7) for consistency with section 
107(c) requiring the NOI to include a request for public comment on 
alternatives or impacts and on relevant information, studies, or 
analyses, delete the cross reference to Sec.  1502.17 because CEQ 
proposes to broaden the language in Sec.  1502.17. Further, this cross 
reference would no longer be necessary since CEQ proposes to remove the 
exhaustion process in 40 CFR 1500.3, which relies, in part, on this 
provision as the first step in that process. Additionally, the purpose 
of scoping is to receive input from the public on the proposed action 
and alternatives as well as other information relevant to consideration 
of the proposed action. CEQ considers the language in this paragraph to 
be redundant to the other required information in paragraph (e).
    To this list of NOI requirements, CEQ proposes to add paragraph 
(e)(9) to require the lead agency to list any cooperating and 
participating agencies that have been identified at the time of the 
NOI, as well as any information those agencies require to facilitate 
their decisions or authorizations related to the EIS. CEQ proposes to 
add this requirement to ensure that lead and cooperating agencies are 
communicating about any unique statutory or regulatory requirements of 
each agency so that the necessary information is included in the 
initial NOI and does not require re-issuance of a second NOI by the 
cooperating or participating agency. For example, the U.S. Forest 
Service's regulations regarding administrative review require the 
responsible official to disclose during the NEPA scoping process that a 
proposed project or activity or proposed plan, plan amendment, or plan 
revision is subject to one of its administrative review regulations. 36 
CFR 218.7(a), 219.52(a). When the Forest Service acts as a cooperating 
agency and the lead agency does not include the necessary information 
in the NOI, the Forest Service then must issue its own NOI, which can 
add additional time in the NEPA process.
    CEQ also proposes to add paragraph (e)(10) to require that the NOI 
include a unique identification number for tracking purposes that would 
be carried forward to all other documents related to the action such as 
the draft and final EISs and ROD. Identification numbers can help both 
the public and agencies track the progress of an EIS for a specific 
action as it moves through the NEPA process. CEQ has similarly proposed 
to require agencies to use tracking numbers for environmental 
assessments in Sec.  1501.5. See section II.C.4.
    CEQ proposes to move and edit the second sentence regarding 
supplemental notices in 40 CFR 1507.3(f)(3) to paragraph (f), ``Notices 
of withdrawal or cancellation,'' to require that an agency publish in 
the Federal Register a notice of withdrawal of the NOI or a 
supplemental notice to inform the public that it is no longer 
considering a proposed action and, therefore, discontinuing preparation 
of an EIS. Agencies should publish such notices if they withdraw, 
cancel, or otherwise cease the consideration of a proposed action 
before completing a final EIS. CEQ proposes this requirement to codify 
common agency practice and to increase transparency to the public. Such 
a notice does not need to be lengthy, but should clearly reference the 
original NOI, name of the project in the original notice, unique 
identification number, and who to contact for additional 
information.\70\ Finally, CEQ proposes to move 40 CFR 1501.9(g) on NOI 
revisions to Sec.  1502.4(g), updating the paragraph references and 
changing ``significant'' to ``important'' and ``impacts'' to 
``effects,'' which CEQ intends to be a clarifying, non-substantive 
edit. These edits would align the text with the proposed changes to 
Sec.  1502.9(d)(1)(ii).
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    \70\ Examples of NOI Withdrawals: Powell Ranger District; Utah; 
Powell Travel Management Project; Withdrawal of Notice of Intent to 
Prepare an Environmental Impact Statement, 87 FR 1109 (Jan. 10, 
2022); Withdrawal of the Notice of Intent to Prepare an 
Environmental Impact Statement for the Carpinteria Shoreline, a 
Feasibility Study in the City of Carpinteria, Santa Barbara County, 
CA, 86 FR 41028 (July 30, 2021).
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4. Timing (Sec.  1502.5)
    CEQ proposes to make three clarifying amendments to Sec.  1502.5. 
First, in paragraph (a), CEQ proposes to add ``e.g.,'' in the 
parenthetical ``(go/no-go).'' CEQ proposes this amendment in response 
to agency feedback during the development of the proposed rule to 
clarify that the feasibility analysis and the ``go/no-go'' stage may 
not occur at the same point in time and may differ depending on what is 
included in the feasibility analysis and how the agency has structured 
that analysis. This change would be consistent with the longstanding 
practice that agencies have discretion to decide the appropriate time 
to begin the NEPA analysis, but also that agencies should integrate the 
NEPA process and other planning or authorization processes early. See 
Sec.  1501.2(a).
    Second, CEQ proposes to add ``complete'' in the first sentence of 
paragraph (b) to clarify that agencies must begin preparing an EIS 
after receiving a complete application, though agencies can elect to 
begin the process earlier if they choose to do so. CEQ also proposes to 
add ``together and'' in the second sentence of paragraph (b) to clarify 
further that agencies should work ``together and with'' potential 
applicants and other entities before receiving the application. Based 
on CEQ's experience, early conversations and coordination among Federal 
agencies, the applicant, and other interested entities can improve 
efficiencies in the NEPA process and ultimately lead to better 
environmental outcomes. Additionally, similar to the proposed change to 
paragraph (a), this proposed change is consistent with other directions 
in the regulations to integrate the NEPA process and other processes 
early. See Sec. Sec.  1500.5(h), (i), 1501.2(a).
5. Page Limits (Sec.  1502.7)
    CEQ proposes to amend Sec.  1502.7, to align the text with section 
107(e) of NEPA, which sets page limits for EISs at 150 pages or 300 
pages for proposals of extraordinary complexity, not including 
citations or appendices. CEQ proposes to remove the requirement for the 
senior agency official of the lead agency to approve longer documents 
for consistency with the statute, which does not provide a mechanism to 
approve longer documents.
    CEQ strongly encourages agencies to prepare concise EISs that are 
both comprehensive and understandable to the decision maker and the 
public. Agencies should consider establishing within their procedures 
mechanisms to do so that will be most effective for their programs and 
activities. Such mechanisms might include placing technical analyses in 
appendices and summarizing them in plain language in the EIS; making 
use of visual aids, which are excluded from the definition of ``page,'' 
including sample images, maps, drawings, charts, graphs, and tables; 
and using insets, colors, and highlights to create visually interesting 
ways to draw attention to key information and conclusions. Agencies 
should consider making EISs and technical appendices machine readable, 
where possible and feasible, to facilitate data sharing and reuse in 
future

[[Page 49947]]

analyses. CEQ invites comment on whether CEQ should modify the 
regulations to appropriately encourage agencies to do so.
6. Writing; and Draft, Final, and Supplemental Statements (Sec. Sec.  
1502.8 and 1502.9)
    CEQ proposes minor edits to Sec.  1502.8 to make the text 
consistent with modifications proposed in Sec.  1502.12 regarding 
visual aids or charts.
    CEQ proposes to delete ``as interpreted'' before ``in the 
regulations in this subchapter'' in Sec.  1502.9(b), as section II.B.5 
explains. CEQ also proposes to clarify that it is the agency preparing 
a draft EIS that determines a draft statement requires supplementation 
to inform its decision-making process.
    In Sec.  1502.9(c), CEQ proposes to clarify that a final EIS should 
``consider and respond'' to comments rather than just ``address'' them, 
restoring language from the 1978 regulations and aligning the language 
with text at Sec.  1503.4(a) regarding consideration of comments. The 
2020 rule did not explain the change to ``address,'' \71\ and CEQ is 
concerned that it could be read as weakening the standard for 
responding to comments within Sec.  1502.9 and in Sec.  1503.4. In 
paragraphs (d)(1)(ii) and (d)(4), CEQ proposes to replace the word 
``significant'' with ``important'' and ``impacts'' with ``effects'' 
(except where ``impact'' is used as part of the term FONSI) for 
consistency, as discussed in section II.A. In paragraph (d)(1)(ii), CEQ 
also proposes to add ``substantial or'' before ``important new 
circumstances or information,'' for consistency with its use section 
108(1) of NEPA, which confirms that an agency may rely on the analysis 
in an existing programmatic environmental document for five years 
without having to supplement or reevaluate the analysis, provided no 
substantial new circumstances or information exist. CEQ invites comment 
on whether it should revise the language in paragraphs (d)(1)(i) and 
(d)(1)(ii) to more specifically identify situations where 
supplementation is required.
---------------------------------------------------------------------------

    \71\ See 2020 Final Rule, supra note 36.
---------------------------------------------------------------------------

    CEQ proposes to redesignate 40 CFR 1502.9(d)(4) as Sec.  1502.9(e), 
title it ``Reevaluation,'' making this a standalone paragraph rather 
than a paragraph of supplemental EISs to clarify that reevaluation is a 
separate tool to document when supplementation is not required. CEQ 
proposes to add in paragraph (e) that agencies may ``reevaluate'' an 
EIS in part to determine ``that the underlying assumptions of the 
analysis remains valid.'' That language is generally consistent with 
section 108(2) of NEPA's rule that an agency may rely on programmatic 
documents that are more than five years old if it reevaluates the 
underlying analysis. However, while section 108(2) requires 
reevaluation for programmatic documents more than five years old, CEQ 
proposes to leave agencies discretion over whether and when to 
reevaluate non-programmatic documents.
7. Recommended Format and Cover (Sec. Sec.  1502.10 and 1502.11)
    CEQ proposes to revise the recommended format of an EIS. CEQ 
proposes to include the summary of scoping information required by 
Sec.  1502.17 and the list of preparers required by Sec.  1502.18 in 
appendices, rather than the main body of the EIS. Therefore, CEQ 
proposes to remove 40 CFR 1502.10(a)(7) through (9), and add a new 
paragraph (a)(7) requiring appendices including the scoping summary and 
list of preparers.
    CEQ proposes to clarify in Sec.  1502.11(a) that the list of 
``responsible agencies'' on an EIS cover are the lead, joint lead, and 
any cooperating agencies. Consistent with the proposed change in Sec.  
1502.4(e)(10), CEQ proposes to amend paragraph (g) to require the cover 
to include the identification number identified in the NOI to make 
clear the relationships of documents to one another and help the public 
and decision makers easily track the progress of the EIS as it moves 
through the NEPA process and to facilitate digitization and analysis.
    CEQ proposes to strike the existing requirement in 40 CFR 
1502.11(g) to include on the cover of the final EIS the estimated 
preparation cost, a change that multiple Federal agencies requested 
during development of this proposed rule. The 2020 rule stated that 
including estimated total costs would be helpful for tracking such 
costs, and that agencies could develop their own methodologies for 
tracking EIS preparation costs in their agency NEPA procedures.\72\ 
However, Federal agency commenters stated that agencies typically do 
not estimate total costs, that they are difficult to monitor especially 
when project sponsors and contractors are bearing some of the cost, 
that the methodology for estimating costs is inconsistent across 
agencies, and that providing these estimates would be burdensome. At 
least one agency commenter noted that agencies inconsistently 
implemented a similar requirement in E.O. 13807, which undermined the 
utility of the estimates, that tracking costs added a significant new 
burden on staff, and that it was not clear whether tracking such costs 
provided useful information for agencies or the public.
---------------------------------------------------------------------------

    \72\ Id.
---------------------------------------------------------------------------

    CEQ does not consider EIS costs to be germane to the purpose of an 
EIS. Requiring that they be included on the cover could incorrectly 
lead the public and decision makers to believe that those costs relate 
to the proposed action addressed in the EIS. In general, the purpose of 
the cover is to indicate the subject matter of the document and provide 
the public with an agency point of contact, provide a short abstract of 
the EIS, and indicate the date by which the public must submit 
comments. Further, CEQ is concerned that requiring agencies to 
calculate the costs may unnecessarily add time to the EIS preparation 
process, particularly where aspects of an environmental review serve 
multiple purposes and allocating costs to NEPA compliance and other 
obligations may be complicated.
    CEQ recognizes the value in gathering information on overall costs, 
trends in costs, and approaches that can reduce costs, as this can 
provide a full picture of how and whether agencies are effectively 
using their resources, including to conduct environmental reviews. Each 
agency should track and monitor these costs through their own 
procedures and mechanisms and consult with CEQ about any lessons 
learned to inform CEQ's ongoing evaluation of the efficiency and 
effectiveness of the NEPA process. CEQ does not consider requiring in 
the NEPA regulations that agencies publish costs on the cover of EISs 
to be the appropriate mechanism to develop that information.
8. Summary (Sec.  1502.12)
    CEQ proposes modifications to Sec.  1502.12 to clarify the purpose 
of the summary and update what elements agencies should include in the 
summary with a goal of creating summaries that are more useful to the 
public and agencies. The summary serves to provide the public and 
decision makers with a clear, high-level overview of the proposed 
action and alternatives, the significant effects, and other critical 
information in the EIS.
    CEQ proposes a few changes to the second sentence in Sec.  1502.12. 
First, CEQ proposes to replace the word ``stress'' with ``include'' in 
describing the contents of the summary to clarify that an adequate and 
accurate summary may include more than what is listed in Sec.  1502.12. 
Next, CEQ proposes to clarify that the summary should summarize

[[Page 49948]]

disputed issues, any issues to be resolved, and key differences among 
alternatives. CEQ proposes this change to provide the public and 
decision makers with a more complete picture of the disputed issues 
rather than focusing on ``areas of'' disputed issues and to facilitate 
informed decision making and transparency. These edits are also 
consistent with Sec.  1502.14(b), which requires agencies to discuss 
alternatives in detail. Summarizing the key differences of alternatives 
could enhance the public's and decision makers' understandings of the 
relative trade-offs of the alternatives considered in detail.
    CEQ also proposes to add language to the second sentence to require 
that the summary identify the environmentally preferable alternative or 
alternatives. Adding the environmentally preferable alternative to the 
summary would enhance the public's and decision makers' understandings 
of the alternative or alternatives that will best promote the national 
environmental policy as expressed in section 101 of NEPA by providing a 
summary of that alternative early on in the document.
    CEQ proposes to add a fourth sentence to Sec.  1502.12 to make 
summaries easier to read and understand by requiring agencies to write 
the summary in plain language and encouraging use of visual aids and 
charts. Existing regulatory text already requires agencies to write 
environmental documents in plain language as a means to preparing 
readable, concise, and informative documents. See, e.g., Sec. Sec.  
1500.4 and 1502.8. Agencies commonly use visual aids, such as graphics, 
maps, and pictures, throughout their environmental documents.
    Finally, similar to other changes proposed regarding page limits, 
CEQ proposes to allow agencies flexibility in the length of a summary. 
In the existing text, summaries are limited to 15 pages. CEQ proposes 
instead to encourage summaries to not exceed 15 pages. Although 
summaries should be brief, CEQ acknowledges with this proposed change 
that some proposed actions are more complex and may require additional 
pages.
9. Purpose and Need; Alternatives Including the Proposed Action 
(Sec. Sec.  1502.13 and 1502.14)
    CEQ proposes to revise Sec.  1502.13 to align the language with the 
text of section 107(d) of NEPA requiring an EIS to include statement 
that briefly summarizes the underlying purpose and need for the 
proposed agency action.
    CEQ proposes revisions to Sec.  1502.14 to promote the rigorous 
analysis and consideration of alternatives, consistent with the 
longstanding principle that agencies take a ``hard look'' at their 
actions. To that end, CEQ proposes to reintroduce much of the 1978 text 
to Sec.  1502.14 that the 2020 rule removed and modernize it to ensure 
agency decision makers are well-informed. Many commenters on the Phase 
1 rule requested CEQ revise this provision to revert to the 1978 
language or revise it to ensure agencies fully explore the reasonable 
alternatives to their proposed actions.\73\
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    \73\ See Phase 1 Response to Comments, supra note 48, at 162.
---------------------------------------------------------------------------

    CEQ proposes to revise the introductory paragraph of Sec.  1502.14 
to reinstate the language from the 1978 regulations that the 
alternatives analysis ``is the heart of the environmental impact 
statement.'' While the 2020 rule described this clause as ``colloquial 
language'' to justify its removal,\74\ CEQ now considers this to be an 
integral policy statement necessary to emphasize the importance of the 
alternatives analyses to allow decision makers to assess a reasonable 
range of possible approaches to the matters before them and notes that 
numerous court decisions quoted this language from the 1978 regulations 
in stressing the importance of the alternatives analysis. See, e.g., 
Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1243 (10th Cir. 2011). 
Numerous commenters on the 2020 rule and the 2022 Phase 1 rule 
supported inclusion of this language.\75\
---------------------------------------------------------------------------

    \74\ 2020 Final Rule, supra note 36, at 43330.
    \75\ See, e.g., 2020 Response to Comments, supra note 63, at 
274; Phase 1 Response to Comments, supra note 48, at 55.
---------------------------------------------------------------------------

    CEQ proposes a clarifying edit in the introductory paragraph, 
replacing ``present'' the environmental effects with ``identify'' the 
``reasonably foreseeable'' environmental effects consistent with Sec.  
1500.2(e) and section 102(2)(C)(i) of NEPA. Finally, in the 
introductory paragraph, CEQ proposes to state that the alternatives 
analysis should sharply define issues for the decision maker and the 
public and provide a clear basis for choice in the options. CEQ 
proposes reintroducing this language from the 1978 regulations because 
it provides an important policy statement, concisely explaining the end 
goals for the alternatives analysis.
    CEQ proposes in paragraph (a) to restore the clause that agencies 
must ``rigorously explore and objectively'' evaluate reasonable 
alternatives at the beginning of the first sentence. CEQ proposes to 
reinsert this language because it provides a standard for how agencies 
should analyze alternatives. CEQ proposes to add two additional 
sentences to paragraph (a). One statement would clarify that agencies 
need not consider every conceivable alternative to a proposed action 
but rather must consider a reasonable range of alternatives that 
fosters informed decision making. CEQ proposes to add this sentence to 
replace the statement in the current 40 CFR 1502.14(f) requiring 
agencies to limit their consideration to a reasonable number of 
alternatives, which CEQ proposes to strike. This proposed language is 
consistent with longstanding CEQ guidance \76\ and would reinforce that 
the alternative analysis is not boundless; the key is to provide the 
decision maker with reasonable options to ensure informed decision 
making. To that end, CEQ also proposes in paragraph (a) to clarify that 
agencies have the discretion to consider reasonable alternatives not 
within their jurisdiction, but NEPA and the CEQ regulations generally 
do not require them to do so. Such alternatives may be relevant, for 
instance, when agencies are considering program-level decisions \77\ or 
anticipate funding for a project not yet authorized by Congress.\78\ 
CEQ anticipates that such consideration would be a relatively 
infrequent occurrence and notes that such alternatives would still need 
to be technically and economically feasible and meet the purpose and 
need for the proposed action, consistent with the definition of 
``reasonable alternatives.'' CEQ considers adding this language to 
paragraph (a) to improve the consistency of the regulations with the 
``hard look'' principle of NEPA.
---------------------------------------------------------------------------

    \76\ Forty Questions, supra note 4.
    \77\ See, e.g., Fed. R.R. Admin., Final Program Environmental 
Impact Report/Environmental Impact Statement (EIR/EIS) for the 
proposed California High-Speed Train System (2005), https://hsr.ca.gov/programs/environmental-planning/program-eir-eis-documents-for-the-statewide-high-speed-rail-system-tier-1/final-program-environmental-impact-report-environmental-impact-statement-eir-eis-for-the-proposed-california-high-speed-train-system-2005/.
    \78\ See, e.g., U.S. Army Corps of Eng'rs, Final Environmental 
Impact Statement for Savannah Harbor Expansion Project (rev. July 
2012), https://www.sas.usace.army.mil/Missions/Civil-Works/Savannah-Harbor-Expansion/Final-Environmental-Impact-Statement/.
---------------------------------------------------------------------------

    Some commenters--both on the 2020 rule and the Phase 1 rule--
supported the removal of the 1978 regulations' requirement to consider 
alternatives outside the jurisdiction of the lead agency, contending 
that such alternatives are inherently infeasible.\79\ However, many 
commenters on the

[[Page 49949]]

Phase 1 rule supported the reintroduction of this language.\80\ CEQ's 
proposal is intended to strike a balance; the proposal would not 
require agencies to consider alternatives outside their jurisdiction or 
preclude agencies from doing so. Further, it would retain the direction 
that the agency need only consider reasonable alternatives.
---------------------------------------------------------------------------

    \79\ 2020 Final Rule, supra note 36, at 43330-31; 2020 Response 
to Comments, supra note 63, at 45, 57.
    \80\ Phase 1 Response to Comments, supra note 48, at 162.
---------------------------------------------------------------------------

    CEQ proposes to replace paragraph (f) with a requirement to 
identify the environmentally preferable alternative. In addition to the 
proposed definition of environmentally preferable alternative in Sec.  
1508.1(l), this provision would describe elements that the 
environmentally preferable alternative may generally include. The list 
uses ``or'' to make clear that the environmentally preferable 
alternative need not include each delineated element and recognizes 
that identifying the environmentally preferable alternative may entail 
making tradeoffs in some cases. This approach would provide agencies 
flexibility to rely on their discretion and expertise to strike an 
appropriate balance in identifying the environmentally preferable 
alternative. Finally, paragraph (f) would clarify that the 
environmentally preferable alternative may be the proposed action, no 
action alternative, or a reasonable alternative. Agencies may identify 
more than one environmentally preferable alternative as they deem 
appropriate.
    The CEQ regulations, at 40 CFR 1505.2, always have required 
agencies to identify the environmentally preferable alternative in a 
ROD. CEQ's proposal would provide more context for what this 
alternative entails, improving consistency and furthering NEPA's goal 
of ensuring that agencies make informed decisions regarding actions 
that impact the environment. Additionally, requiring that the draft and 
final EIS identify the environmentally preferable alternative would 
provide more transparency to the public as to the agency's decision-
making process at an earlier stage, as well as an opportunity to 
comment on it before the agency makes its decision.
10. Affected Environment (Sec.  1502.15)
    CEQ proposes revisions to Sec.  1502.15 to emphasize the use of 
high-quality information, including best available science and data; 
clarify considerations of reasonably foreseeable environmental trends; 
and emphasize efficiency and concise documents. CEQ also proposes to 
divide Sec.  1502.15 into paragraphs (a), (b), and (c) to improve 
readability.
    CEQ proposes to discuss data in a new paragraph (b), which would 
encourage agencies to use high-quality information, including best 
available science and data, in recognition that these should inform all 
agency decisions. This paragraph would articulate clearly NEPA's 
statutory mandate that science inform agencies' decisions as part of a 
systematic, interdisciplinary approach. See 42 U.S.C. 4332(2)(A). In 
addition, the paragraph would clarify that this information should 
inform agencies' consideration of ``reasonably foreseeable 
environmental trends,'' noting explicitly that this includes 
anticipated climate-related changes to the environment.
    CEQ proposes this language to clarify that agencies should consider 
reasonably foreseeable future climate conditions on affected areas 
rather than merely describing general climate change trends at the 
global or national level. In line with scientific projections, accurate 
baseline assessment of the affected environment over an action's 
lifetime should incorporate forward-looking climate projections rather 
than relying on historical data alone. CEQ also proposes language in 
paragraph (b) to connect the description of baseline environmental 
conditions and reasonably foreseeable trends to an agency's analysis of 
environmental consequences and mitigation measures.
    CEQ proposes to move the second and third through fifth sentences 
of 40 CFR 1502.15 to new paragraph (c). CEQ also proposes minor 
revisions to the relocated language and a new sentence to provide that 
agencies may combine the affected environment and environmental 
consequences sections in an EIS, which should be no longer than 
necessary to understand the relevant affected environment and the 
effects of the alternatives.
11. Environmental Consequences (Sec.  1502.16)
    CEQ proposes several changes to Sec.  1502.16 to clarify priorities 
and methods of analysis and make updates to ensure that agencies 
integrate climate change and environmental justice considerations into 
the analysis of environmental effects.
    CEQ proposes in paragraph (a)(1) to modify the sentence requiring 
agencies to base the comparison of the proposed action and reasonable 
alternatives on the discussion of effects to add ``reasonably 
foreseeable'' before ``environmental effects'' for consistency with the 
text of section 102(2)(C)(i) of NEPA and to focus the comparison of the 
proposed action and reasonable alternatives on the ``significant or 
important effects'' to emphasize that agencies' analyses of effects 
should be proportional to the significance of the effects. The FRA's 
amendments to NEPA codified the longstanding principle from the 1978 
regulations and long recognized by the courts that effects must be 
reasonably foreseeable. Consistent with this provision, agencies should 
identify the effects they deem significant whenever possible to inform 
the public and decision makers. Finally, CEQ proposes adding a new 
sentence to the end of paragraph (a)(1) clarifying the proper role of 
the no action alternative to ensure that the comparative analysis is 
not distorted by selecting a different alternative (for example, the 
preferred alternative) as the baseline against which all other 
alternatives are measured. In formulating the no action alternative, 
agencies should make reasonable assumptions. CEQ invites comment on 
whether it should include additional direction or guidance regarding 
the no action alternative in the final rule.
    Next, CEQ proposes to add ``reasonably foreseeable'' in paragraph 
(a)(1) before ``environmental effects'' for consistency with section 
102(2)(C)(i) of NEPA and in paragraph (a)(2) before ``adverse 
environmental effects'' for consistency with section 102(2)(C)(ii) of 
NEPA. CEQ proposes to add a new paragraph (a)(3) requiring an analysis 
of effects of the no action alternative, including any adverse 
environmental effects consistent with section 102(2)(C)(iii) of NEPA, 
which requires an analysis of any negative environmental impacts of not 
implementing the proposed action in the case of a no action 
alternative. CEQ interprets ``negative'' to have the same meaning as 
the term ``adverse.'' For example, an environmental restoration project 
that helps mitigate the effects of climate change and restores habitat 
could have adverse effects if it were not implemented or the 
construction of a commuter transit line could have adverse effects from 
persistent traffic congestion, air pollution, and related effects to 
environmental justice communities if it were not implemented. To 
accommodate this additional paragraph, CEQ proposes to redesignate 40 
CFR 1502.15(a)(3) through (a)(5) as paragraphs (a)(4) through (a)(6) 
accordingly. In paragraph (a)(5), CEQ proposes to insert ``Federal'' 
before ``resources'' for consistency with section 102(2)(C)(v) of NEPA.
    Then, CEQ proposes to add reference to two specific elements and 
revise the reference to an existing element that agencies must include 
in the analysis of environmental consequences, all related

[[Page 49950]]

to climate change. First, CEQ proposes to revise paragraph (a)(6) to 
broaden it from land use plans to plans generally and clarify that this 
element includes plans and policies addressing climate change. Second, 
CEQ proposes to add a new paragraph (a)(7) to clarify that the 
discussion of environmental consequences in an EIS must include any 
reasonably foreseeable climate change-related effects, including 
effects of climate change on the proposed action and alternatives 
(which may in turn alter the effects of the proposed action and 
alternatives). CEQ would then redesignate the paragraphs at 40 CFR 
1502.16(a)(6) and(a)(7) as paragraphs (a)(8) and (a)(9), respectively. 
Third, CEQ proposes to add a new paragraph (a)(10), which would require 
agencies to address any risk reduction, resiliency, or adaptation 
measures included in the proposed action and alternatives. This would 
ensure agencies consider resiliency to the risks associated with a 
changing climate, including wildfire risk, extreme heat and other 
extreme weather events, drought, flood risk, loss of historic and 
cultural resources, and food scarcity. This analysis would further 
NEPA's mandate that agencies use ``the environmental design arts'' in 
decision making and consider the relationship between the ``uses'' of 
the environment ``and the maintenance and enhancement of long-term 
productivity.'' 42 U.S.C. 4332(2)(A) and (2)(C)(iv). It also would help 
achieve NEPA's goals of protecting the environment across generations, 
preserving important cultural and other resources, and attaining ``the 
widest range of beneficial uses of the environment without degradation, 
risk to health or safety, or other undesirable and unintended 
consequences.'' 42 U.S.C. 4331(b)(3).
    These proposed revisions would clarify that agencies must address 
both effects of the proposed action and alternatives on climate change, 
and the resiliency of the proposed action and alternatives in light of 
climate change.\81\ These proposed revisions are consistent with what 
NEPA has long required: using science to make informed decisions. This 
proposal is also consistent with NEPA's specific requirement to study 
the effects of the Federal action because effects on the Federal action 
due to climate change may in turn alter the effects that the project 
has on its environment. These proposed revisions also align well with 
the definition of effects to encompass reasonably foreseeable indirect 
and cumulative effects, which are integral to NEPA analyses.
---------------------------------------------------------------------------

    \81\ Such analysis is not new and CEQ has issued guidance 
consistent with these proposed provisions for nearly a decade. See 
generally CEQ, Final Guidance for Federal Departments and Agencies 
on Consideration of Greenhouse Gas Emissions and the Effects of 
Climate Change in National Environmental Policy Act Reviews, 81 FR 
51866 (Aug. 8, 2016), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_guidance.pdf, and 2023 GHG Guidance, supra 
note 9.
---------------------------------------------------------------------------

    To accommodate the new paragraph (a)(10), CEQ proposes to 
redesignate 40 CFR 1502.16(a)(8) through (a)(10) as paragraphs (a)(11) 
through (a)(13), respectively. Finally, CEQ proposes to add paragraph 
(a)(14) to provide that agencies must discuss the potential for 
disproportionate and adverse health and environmental effects on 
communities with environmental justice concerns. The addition of this 
paragraph would clarify that EISs generally must include an 
environmental justice analysis to ensure that agency actions do not 
unintentionally impose disproportionate and adverse effects on these 
communities.
    Finally, CEQ proposes to strike ``and give appropriate 
consideration to'' from paragraph (b). CEQ proposes this revision to 
remove unnecessary language that could be read to require the decision 
maker to make consideration of such effects a higher priority than 
other effects listed in this section.
12. Summary of Scoping Information (Sec.  1502.17)
    CEQ proposes to revise Sec.  1502.17 and retitle it ``Summary of 
scoping information'' to more accurately reflect the proposed content 
of this section and align it with the common practice of what many 
agencies produce via scoping reports. CEQ proposes other changes in 
this section to simplify and remove unnecessary or redundant text and 
clarify requirements.
    CEQ proposes to revise paragraph (a) to require agencies to include 
a summary of the information they receive from commenters during the 
scoping process in draft EISs consistent with the proposed revisions to 
Sec. Sec.  1500.3, 1501.9, and 1502.4. CEQ proposes to replace ``State, 
Tribal, and local governments and other public commenters'' with 
``commenters'' because this phrase is all encompassing. CEQ also 
proposes to clarify that a draft EIS should include a summary of 
information, including alternative and analyses, that commenters 
submitted during scoping. This change provides agencies flexibility to 
develop a broader summary of information received during scoping. While 
agencies should still summarize alternatives and analyses, this 
provision would not require them to provide a specific summary of every 
individual alternative, piece of information, or analysis commenters 
submit during scoping.
    CEQ proposes to redesignate paragraph (a)(1) as paragraph (b) and 
modify it to clarify that agencies can either append to the draft EIS 
or otherwise make publicly available comments received during scoping. 
This modification clarifies that the requirements of this paragraph can 
be met through means other than an appendix, such as a scoping report, 
which is common practice for some Federal agencies. CEQ proposes a 
conforming edit in paragraph (d) of Sec.  1502.19, ``Appendix,'' for 
consistency with this language.
    Finally, CEQ proposes to delete the current 40 CFR 1502.17(a)(2) 
and (b) because the requirements of these paragraphs are redundant to 
the requirements in part 1503 for Federal agencies to invite comment on 
draft EISs in their entirety and review and respond to public comments.
13. Incomplete or Unavailable Information (Sec.  1502.21)
    CEQ proposes one revision to paragraph (b) of Sec.  1502.21 to 
strike ``but available,'' which addresses situations where an agency 
encounters incomplete or unavailable information during its evaluation 
of a proposed action's reasonably foreseeable significant adverse 
effects. CEQ proposes to strike ``but available,'' a phrase added by 
the 2020 rule, to clarify that agencies must obtain information 
relevant to reasonably foreseeable significant adverse effects that is 
essential to a reasoned choice between alternatives where the overall 
costs of doing so are not unreasonable, and the means of obtaining that 
information are known. This qualifier, which CEQ proposes to remove, 
could be read to significantly narrow agencies' obligations to obtain 
additional information even when it is easily attainable and the costs 
are reasonable. CEQ has reconsidered this change and now considers it 
vital to the NEPA process for agencies to undertake studies and 
analyses where necessary rather than relying solely on available 
information where the costs of obtaining the relevant information are 
not unreasonable.
    Agency feedback received during the development of this proposed 
rule supports this change. Agency NEPA experts indicated that this 
qualifier could be read to say that agencies do not need to collect 
additional information that could and should otherwise inform the 
public and decision makers. Removing this phrase also would be

[[Page 49951]]

consistent with other provisions in the regulations emphasizing the 
importance of relying on high-quality and accurate information in 
implementing NEPA. See, e.g., Sec.  1500.1(b).
14. Methodology and Scientific Accuracy (Sec.  1502.23)
    CEQ proposes changes to Sec.  1502.23 to promote use of high-
quality information, such as best available science and data; require 
agencies to explain assumptions; and, where appropriate, incorporate 
projections, including climate change-related projections, in the 
evaluation of reasonably foreseeable effects. CEQ proposes to separate 
existing 40 CFR 1502.23 into paragraphs (a) and (b), with some 
modification, and add a new paragraph (c). The proposed changes to this 
section would provide additional guidance on how Federal agencies can 
meet NEPA's statutory requirement to ``study, develop, and describe 
appropriate alternatives to recommended courses of action in any 
proposal'' as set forth in section 102(2)(H) of NEPA.
    In paragraph (a), CEQ proposes to reinstate the term high-quality 
information, as used in the 1978 regulations, and clarify that such 
information includes best available science and reliable data, models, 
and resources. Also, CEQ proposes clarifying edits, including moving 
the word ``existing'' in the second sentence of paragraph (a) to the 
end of the sentence and adding reference to sources and materials. CEQ 
proposes these changes to clarify that while agencies must use reliable 
data and resources, which can include existing data and resources, they 
are not limited to use of existing materials. Public commenters on the 
2020 rule and Federal agency experts who provided input on this 
proposed rule raised concerns that the 2020 language could limit 
agencies to ``existing'' resources and preclude agencies from 
undertaking site surveys, conducting investigation, and performing 
other forms of data collection, which have long been standard practice 
when analyzing an action's potential environmental effects and may be 
necessary for agencies to understand particular effects.
    For example, in the context of analyzing historical, cultural, or 
biological effects, survey work is often revisited and reassessed 
periodically, and an agency should not be required to rely on outdated 
data. While there are numerous reliable data sources for a variety of 
resources analyzed in NEPA documents, and the CEQ regulations encourage 
the use of existing information wherever possible, see Sec.  1501.12, 
agencies should be permitted to exercise their good judgment in 
determining when new data and analyses are necessary. Indigenous 
Knowledge also can be a source of high-quality information.
    CEQ proposes to add a new sentence at the end of paragraph (a) 
encouraging agencies to explain their assumptions and any limitations 
of their models and methods. CEQ proposes this addition to support this 
section's overall purpose of ensuring the integrity of the discussions 
and analyses in environmental documents. Additionally, this would 
codify typical agency practice to explain relevant assumptions or 
limitations of the information in environmental documents.
    CEQ proposes to strike the statement that agencies are not required 
to undertake new research to inform their analyses consistent with the 
changes to paragraph (a). As noted in this section, it is common 
practice for agencies, when necessary or appropriate, to engage in 
additional research and create new data based on an action's particular 
circumstances (such as the affected environment) when analyzing 
proposed actions under NEPA. Further, by simply striking the sentence 
added in 2020, CEQ is not proposing to add an across-the-board 
requirement that agencies must undertake new research in all cases.
    Finally, CEQ proposes to add a new paragraph (c), which would 
require agencies to use projections when evaluating reasonably 
foreseeable effects, including climate change-related effects, where 
appropriate. CEQ also proposes to clarify that such projections may 
employ mathematical or other models that project a range of possible 
future outcomes, so long as agencies disclose the relevant assumptions 
or limitations. This addition is consistent with the amendments 
proposed in paragraphs (a) and (b). Based on existing agency practice 
and academic literature on climate science, agencies can and do use 
reliable projections to analyze reasonably foreseeable climate change-
related effects. Where available and appropriate, agencies also can use 
or rely on projections that are scaled to a more targeted and localized 
geographic scope, such as land use projections, air emissions, and 
modeling, or to evaluate climate effects experienced locally in 
relation to the proposed action. When doing so, agencies should explain 
the basis for relying on those projections and their underlying 
assumptions. Climate projections can vary based on different factors 
and assumptions such as geography, location, and existing and future 
GHG emissions. For that reason, agencies can use models that analyze a 
range of possible future outcomes, but agencies must disclose the 
underlying relevant assumptions or limitations of those models.
    CEQ expects that modeling techniques will continue to improve in 
the future, resulting in more precise climate projections. To be 
consistent with proposed changes with paragraph (a) in this section, as 
climate modeling techniques advance, agencies should rely on high-
quality information when evaluating reasonably foreseeable climate 
change-related effects.

E. Proposed Revisions To Update Part 1503, Commenting on Environmental 
Impact Statements

    CEQ is proposing substantive revisions to all sections of part 
1503, except Sec.  1503.2, Duty to comment. CEQ invites comments on 
whether it should make changes to this section or other changes to part 
1503.
1. Inviting Comments and Requesting Information and Analyses (Sec.  
1503.1)
    CEQ proposes to delete 40 CFR 1503.1(a)(3) requiring agencies to 
invite comment specifically on the submitted alternatives, information, 
and analyses and the summary thereof for consistency with proposed 
changes to Sec. Sec.  1500.3 and 1502.17. This requirement would be 
unnecessary with the removal of the exhaustion provision. It also is 
redundant as Federal agencies invite comment on all sections of draft 
EISs and therefore need not invite comment on one specific section of 
an EIS.
2. Specificity of Comments and Information (Sec.  1503.3)
    CEQ proposes edits to Sec.  1503.3 to clarify the expected level of 
detail in comments submitted by the public and other agencies to 
facilitate their consideration by agencies in the decision-making 
process. The proposal would remove or otherwise modify provisions that 
could inappropriately restrict public comments and place unnecessary 
burden on public commenters.
    CEQ proposes to remove language from Sec.  1503.3(a) added in the 
2020 rule that requires comments to be as detailed as necessary to 
meaningfully participate and fully inform the agency of the commenter's 
position because this requirement could lead commenters to provide 
unnecessarily long comments that will impede efficiency. Paragraph (a) 
already requires comments to be ``as specific as possible,'' and the 
language CEQ proposes to remove could be read

[[Page 49952]]

to require commenters to provide detailed information that is not 
pertinent to the NEPA analysis about the commenter's position on the 
proposed action, the project proponent, the Federal agency, or other 
issues. For example, the text could be read to require a commenter to 
provide a detailed explanation of a moral objection to a proposed 
action or a personal interest in it if those inform the commenter's 
position on the project. The text also could imply that commenters must 
either be an expert on the subject matter or hire an expert to provide 
the necessary level of detail. The current text could be read to imply 
that commenters are under an obligation to collect or produce 
information necessary for agencies to fully evaluate issues raised in 
comments even if the commenters do not possess that information or the 
skills necessary to produce it. Some commenters on the 2020 rule raised 
this issue, expressing concerns that this language could be read to 
require the general public to demonstrate a level of sophistication and 
technical expertise not required historically under the CEQ regulations 
or consistent with the NEPA statute.\82\ Commenters also expressed 
concern that the requirement would discourage or preclude laypersons or 
communities with environmental justice concerns from commenting.\83\ 
Other commenters on the 2020 rule expressed concern that the changes 
would shift the responsibility of analysis from the agencies to the 
general public.\84\ Finally, CEQ proposes to remove this language 
because the requirements that comments provide as much detail as 
necessary to ``meaningfully'' participate and ``fully inform'' the 
agency are vague and put the burden on the commenter to anticipate the 
appropriate level of detail to meet those standards.
---------------------------------------------------------------------------

    \82\ 2020 Response to Comments, supra note 63, at 326-27.
    \83\ Id. at 327.
    \84\ Id. at 328.
---------------------------------------------------------------------------

    CEQ also proposes to delete from paragraph (a) language describing 
the types of impacts that a comment should cover, including the 
reference to economic and employment impacts. CEQ proposes this 
deletion because this language imposes an inappropriate burden on 
commenters by indicating that comments need to explain why an issue 
matters for economic and employment purposes. NEPA requires agencies to 
analyze the potential effects on the human environment and does not 
require that these effects be specified in economic terms or related 
specifically to employment considerations. Therefore, it is 
inappropriate to single out these considerations for special treatment 
and unduly burdensome to expect commenters to address economic and 
employment impacts. The proposed revision would not have the effect of 
limiting commenters from addressing these issues but would avoid the 
implication that members of the public are welcome to comment only if 
they address those issues. CEQ proposes to delete the reference to 
``other impacts affecting the quality of the human environment'' 
because it is unnecessary and duplicative of ``consideration of 
potential effects and alternatives.''
    Finally, in paragraph (a), CEQ proposes changes to the last 
sentence to clarify that, only where possible, the public should 
include citations or proposed changes to the EIS or describe the data, 
sources, or methodologies that support the proposed changes in their 
comments. While such information is helpful to the agency whenever it 
is readily available, CEQ has concerns that this could be construed to 
place an unreasonable burden on commenters.
    CEQ proposes to strike 40 CFR 1503.3(b) and redesignate 40 CFR 
1503.3(c) through (d) as Sec.  1503.3(b) and (c). CEQ proposes the 
deletion of paragraph (b) for consistency with proposed changes to 
Sec.  1500.3's exhaustion requirement and corresponding changes to 
Sec.  1502.17. The paragraph also is unrelated to the subject addressed 
in Sec.  1503.3, which addresses the specificity of comments, rather 
than when commenters should file their comments. Further, agencies have 
long had the discretion to consider special or unique circumstances 
that may warrant consideration of comments outside those time periods. 
CEQ proposes to strike ``site-specific'' in paragraph (c) to clarify 
that cooperating agencies must identify additional information needed 
to address significant effects generally. This proposed change would 
enhance efficiency because it would ensure that cooperating agencies 
have the information they need to fully comment on EISs averting 
potential delay in the environmental review process.
    Finally, CEQ proposes in paragraph (d) to strike the requirement 
for cooperating agencies to cite their statutory authority for 
recommending mitigation. This requirement is unnecessary since, at this 
stage, those agencies with jurisdiction by law have already established 
their legal authority to participate as cooperating agencies. CEQ also 
proposes in paragraph (d) to replace the reference to ``permit, 
license, or related requirements'' with ``authorizations'' because the 
definition of ``authorization'' in Sec.  1508.1(c) is inclusive of 
those terms.
3. Response to Comments (Sec.  1503.4)
    CEQ proposes to revise paragraph (a) to clarify that agencies must 
respond to comments but may do so either individually, in groups, or in 
some combination thereof. The current use of ``may,'' which the 2020 
regulations changed from ``shall,'' creates ambiguity that could be 
read to mean that agencies have discretion in whether to respond to 
comments at all, not just the way they respond, i.e., individually or 
in groups. Some comments on the 2020 proposed rule construed the change 
to ``may'' as weakening the longstanding requirement to respond to 
comments. The proposed change removes any ambiguity created by 
revisions to the paragraph in the 2020 regulations and is consistent 
with the longstanding requirement and expectation for agencies to 
respond to comments received on an EIS while also clarifying that 
agencies have discretion on how to respond to comments to promote the 
efficiency of the NEPA process.
    In paragraph (c), CEQ proposes changes to clarify that when an 
agency uses an errata sheet, the agency must publish the entire final 
EIS, which would include the errata sheet, the draft EIS, and the 
comments with their responses. CEQ proposes these edits to reflect the 
typical Federal agency practice and to reflect the current requirement 
for electronic submission of EISs rather than the old practice of 
printing EISs for distribution.

F. Proposed Revisions To Update Part 1504, Pre-Decisional Referrals to 
the Council of Proposed Federal Actions Determined To Be 
Environmentally Unsatisfactory

1. Purpose (Sec.  1504.1)
    CEQ proposes in Sec.  1504.1(a) to add language encouraging 
agencies to engage early with each other to resolve interagency 
disagreements concerning proposed major Federal actions before such 
disputes are referred to CEQ. CEQ also proposes to add language 
clarifying that part 1504 establishes procedures for agencies to submit 
requests to CEQ for informal dispute resolution, expanding the purpose 
to reflect changes proposed in Sec. Sec.  1504.2 and described in 
section II.F.2. This proposal is consistent with CEQ's ongoing role in 
promoting the use of environmental collaboration and conflict 
resolution,\85\ and serving as a

[[Page 49953]]

convener and informal mediator for interagency disputes. CEQ strongly 
encourages agencies to resolve disputes informally and as early as 
possible so that referrals under part 1504 are used only as a last 
resort. Early resolution of disputes is essential to ensuring an 
efficient and effective environmental review process.
---------------------------------------------------------------------------

    \85\ See OMB & CEQ, Memorandum on Environmental Collaboration 
and Conflict Resolution (Sept. 7, 2012), https://www.energy.gov/sites/default/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf; OMB & CEQ, Memorandum on Environmental Conflict Resolution 
(Nov. 28, 2005), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/OMB_CEQ_Joint_Statement.pdf.
---------------------------------------------------------------------------

    In paragraph (b), which addresses EPA's role pursuant to section 
309 of the Clean Air Act, CEQ proposes to strike the parenthetical 
providing the term ``environmental referrals,'' as this term is not 
used elsewhere in part 1504. Further, CEQ notes that EPA's section 309 
authority is distinct from the ability of an agency to make a referral 
pursuant to this part. Finally, CEQ proposes to revise the second 
sentence in paragraph (c) to eliminate the passive voice to improve 
clarity.
2. Early Dispute Resolution (Sec.  1504.2)
    As discussed further in section II.F.3, CEQ proposes to move the 
provisions in existing 40 CFR 1504.2 to Sec.  1504.3(a) to repurpose 
Sec.  1504.2 for a new section on early dispute resolution. CEQ 
proposes to add this section to codify the current practice of agencies 
to engage with one another and enlist CEQ to help resolve interagency 
disputes. The added text would codify CEQ's role in convening 
discussions, mediating issues, and recommending resolutions. While the 
proposed provisions in Sec.  1504.2 are non-binding, they would serve 
to encourage agencies to use this informal process to resolve 
interagency disputes early in the process and provide transparency to 
the public that this process occurs.
    Proposed paragraph (a) would encourage agencies to engage in 
interagency coordination and collaboration within planning and 
decision-making processes and to identify and resolve interagency 
disputes. Further, paragraph (a) would encourage agencies to elevate 
issues to appropriate agency officials or to CEQ in a timely manner 
that is consistent with the schedules for the proposed action 
established under Sec.  1501.10.
    Paragraph (b) would allow a Federal agency to request that CEQ 
engage in informal dispute resolution. When making such a request to 
CEQ, the agency must provide CEQ with a summary of the proposed action, 
information on the disputed issues, and agency points of contact. CEQ 
proposes this provision to codify the longstanding practice of CEQ 
helping to mediate and resolve interagency disputes outside of and well 
before the formal referral process (Sec.  1504.3) and to provide 
additional direction to agencies on what information CEQ needs to 
effectively mediate.
    Paragraph (b) would provide CEQ with several options to respond to 
a request for informal dispute resolution, including requesting 
additional information, convening discussions, and making 
recommendations, as well as the option to decline the request.
3. Criteria and Procedure for Referrals and Response (Sec.  1504.3)
    As noted in section II.F.2, CEQ proposes to move the criteria for 
referral currently set forth in 40 CFR 1504.2 to a new Sec.  1504.3(a) 
and redesignate 40 CFR 1504.3(a) through (h) as Sec.  1504.5(b) through 
(i), respectively. As a result of this consolidation, CEQ would revise 
the title of Sec.  1504.3 to ``Criteria and procedure for referrals and 
response.'' The criteria and procedures for agencies to make a referral 
apply to agencies that make a referral under the NEPA regulations and 
do not apply to EPA when exercising its referral authority under 
section 309 of the Clean Air Act (42 U.S.C. 7609).

G. Proposed Revisions to NEPA and Agency Decision Making (Part 1505)

1. Record of Decision in Cases Requiring Environmental Impact 
Statements (Sec.  1505.2)
    CEQ proposes modifications in Sec.  1505.2 to align this section 
with other proposed changes to the regulations and clarify the 
alternatives agencies must identify in RODs. CEQ also proposes to 
modify the provision on mitigation.
    As discussed further in this section, CEQ proposes to strike 40 CFR 
1505.2(b), make 40 CFR 1505.2(a) an undesignated introductory paragraph 
in Sec.  1505.2, and redesignate 40 CFR 1505.2(a)(1) through (3) as 
Sec.  1505.2(a) through (c), respectively. In Sec.  1505.2(b), CEQ 
proposes to restructure the first two sentences to improve readability 
and clarify that agencies must identify one or more environmentally 
preferable alternatives in the ROD, consistent with proposed changes to 
Sec.  1502.14(f) requiring agencies to identify them in the EIS and 
Sec.  1508.1(l), defining ``environmentally preferable alternative.'' 
Further, in the second sentence of paragraph (b), CEQ proposes to add 
``environmental'' to the list of relevant factors upon which an agency 
may base discussion of preferences among alternatives. In paragraph 
(c), CEQ proposes to change ``avoid or minimize'' to ``mitigate'' in 
the first sentence for consistency with the remainder of the paragraph. 
CEQ also proposes to clarify that any mitigation must be enforceable, 
such as through permit conditions or grant agreements, if an agency 
includes it as a component of a proposed action and relies on its 
implementation to analyze the action's reasonably foreseeable 
environmental effects. Additionally, CEQ proposes to require agencies 
to identify the authority for enforceable mitigation, and adopt a 
mitigation and compliance plan consistent with Sec.  1505.3(c).
    CEQ proposes to strike 40 CFR 1505.2(b), which requires a decision 
maker to certify in the ROD that the agency has considered all of the 
alternatives, information, and analyses submitted under 40 CFR 
1502.17(b) and states that such certification is entitled to a 
presumption that the agency has considered such information in the EIS. 
CEQ proposes to strike 40 CFR 1505.2(b) because it is redundant--the 
discussion in the ROD and the decision maker's signature on such 
document has long served to verify the agency has considered the EIS's 
analysis of the proposed action, alternatives, and effects, as well as 
the public comments received. Additionally, while CEQ agrees that 
agencies are entitled to a presumption of regularity under the tenets 
of generally applicable administrative law, this presumption does not 
arise from NEPA, and therefore, CEQ considers it inappropriate to 
address in the NEPA regulations.
    Finally, CEQ proposes to strike 40 CFR 1505.2(b) consistent with 
the proposal to remove the exhaustion provision in 40 CFR 1500.3, as 
discussed in section II.B.2. As CEQ discussed in that section, CEQ now 
considers it more appropriately the purview of the courts to make 
determinations regarding exhaustion. The certification requirement 
would no longer be necessary since it was intended to trigger the 
exhaustion provision in judicial review.
2. Implementing the Decision (Sec.  1505.3)
    CEQ proposes revisions to Sec.  1505.3 to add provisions for 
mitigation and related monitoring and compliance plans. To accommodate 
the proposed changes, CEQ proposes to designate the undesignated 
introductory paragraph of 40 CFR 1505.3 as paragraph (a) and 
redesignate 40 CFR 1505.3(a) and (b) as Sec.  1505.3(a)(1) and (a)(2), 
respectively.
    CEQ proposes to add new Sec.  1505.3(b) to encourage lead and 
cooperating agencies to incorporate, where

[[Page 49954]]

appropriate, mitigation measures addressing a proposed action's 
significant adverse human health and environmental effects that 
disproportionately and adversely affect communities with environmental 
justice concerns. This addition would highlight the importance of 
considering environmental justice and addressing disproportionate 
effects through the NEPA process and the associated decision. CEQ 
proposes this addition based on public and agency feedback received 
during development of this proposed rule requesting that the 
regulations address mitigation of disproportionate effects. 
Additionally, this proposed change would encourage agencies to 
incorporate mitigation measures to address disproportionate burdens on 
communities with environmental justice concerns.
    CEQ proposes to strike the text in paragraph (c) regarding 
mitigation and strike existing 40 CFR 1505.3(d) regarding publication 
of monitoring, replacing them with the new language in Sec.  1505.3(c) 
regarding the contents of a monitoring and compliance plan. A revised 
paragraph (c) would require agencies to prepare a monitoring and 
compliance plan when the agency relies on and commits to mitigation in 
a ROD, FONSI, or separate document, which could be issued after the 
decision. This provision would require a plan for any mitigation relied 
upon and adopted as the basis for analyzing the reasonably foreseeable 
effects of a proposed action, not just mitigation to address 
significant effects. CEQ views this plan as necessary for an agency to 
conclude that it is reasonably foreseeable that a mitigation measure 
will be implemented. Further, the plan is necessary for the agency to 
conclude that the effects of the action without the mitigation measure 
are not reasonably foreseeable and, therefore, do not need to be 
analyzed and disclosed. CEQ does not propose to require a monitoring 
and compliance plan where an agency analyzes and discloses the effects 
of the action without the mitigation measure. In that circumstance, the 
agency would not rely on the mitigation measure as the basis for 
identifying reasonably foreseeable effects.
    New paragraphs (c)(1) and (c)(1)(i) through (c)(1)(vi) would 
describe the contents of a monitoring and compliance plan and provide 
agencies flexibility to tailor plans to the complexity of the 
mitigation that the agency has incorporated into a ROD, FONSI, or other 
documents. Contents would include a description of the mitigation 
measures; the parties responsible for monitoring and implementation; 
how the information will be made publicly available, as appropriate; 
the timeframe for the mitigation; the standards for compliance; and how 
the mitigation will be funded. Agencies may tailor monitoring and 
compliance plans to the particular action, but they should contain 
sufficient detail to inform the participating and cooperating agencies 
and the public about relevant considerations, such as the magnitude of 
the environmental effects that would be subject to mitigation, the 
degree to which the mitigation represents an innovative approach, the 
degree of uncertainty about the efficacy of the mitigation, and other 
relevant facts that support a determination that the mitigation will be 
effective. Where a proposed action involves more than one agency, the 
lead and cooperating agencies should collaboratively develop a 
monitoring and compliance plan that clearly defines agency roles and 
avoids duplication of effort.
    Requiring agencies to prepare a monitoring and compliance plan for 
mitigation relied upon in a decision is intended to address concerns 
that mitigation measures included in agency decisions are not always 
carried out or monitored for effectiveness. If it is reasonably 
foreseeable that a mitigation measure will not be effective, then the 
agency could not appropriately rely on the mitigation measure in 
determining that an effect is not significant. A monitoring and 
compliance plan would address this concern and support an agency 
relying on mitigation for purposes of accurately assessing the 
environmental effects of a proposed action, and, in some circumstances, 
concluding that a FONSI is appropriate.
    A new paragraph (c)(2) would state that any new information 
developed through the monitoring and compliance plan would not require 
an agency to supplement their environmental documents solely because of 
this new information. This provision is intended to clarify that the 
existence of a monitoring and compliance plan by itself would not mean 
that the action to which it relates is an ongoing action if it would 
otherwise be considered completed; however, if an action remains to 
occur notwithstanding the monitoring and compliance plan, the agency 
may need to supplement its analysis in light of new information if the 
criteria for supplementation in Sec.  1502.9(d) are met.
    The proposed changes to Sec.  1505.3 would be consistent with 
proposed revisions to 40 CFR 1505.2(c), which direct agencies to adopt 
and summarize a monitoring and enforcement program for any enforceable 
mitigation requirements or commitments for a ROD, and changes to Sec.  
1501.6(a) to clarify the use of mitigated FONSIs. The changes also 
would provide more consistency in the content of monitoring and 
compliance plans, increase transparency in the disclosure of mitigation 
measures, and provide the public and decision makers with relevant 
information about mitigation measures and the process to comply with 
them.

H. Proposed Revisions to Other Requirements of NEPA (Part 1506)

    CEQ proposes multiple revisions to part 1506, as described in this 
section. As noted in section II.C.7, CEQ proposes to move 40 CFR 
1506.6, ``Public involvement,'' to proposed Sec.  1501.9, ``Public and 
governmental engagement.'' CEQ is not proposing changes to Sec.  
1506.2, Elimination of duplication with State, Tribal, and local 
procedures; Sec.  1506.4, Combining documents; or Sec.  1506.8, 
Proposals for legislation. CEQ invites comment on whether it should 
make changes to these sections or other changes to part 1506.
1. Limitations on Actions During NEPA Process (Sec.  1506.1)
    CEQ proposes to edit Sec.  1506.1(b) to provide further clarity on 
the limitations on actions during the NEPA process to ensure that 
agencies and applicants do not take actions that will adversely affect 
the environment or limit the choice of reasonable alternatives until an 
agency concludes the NEPA process.
    CEQ is proposing to amend the last sentence in paragraph (b), which 
provides that agencies may authorize certain activities by applicants 
for Federal funding while the NEPA process is ongoing. To better align 
this provision with NEPA's requirements, CEQ proposes to add a clause 
to the sentence clarifying that such activities cannot limit the choice 
of reasonable alternatives, and the Federal agency must notify the 
applicant that the agency retains discretion to select any reasonable 
alternative or the no action alternative regardless of any potential 
prior activity taken by the applicant prior to the conclusion of the 
NEPA process. This proposal would provide additional clarity consistent 
with 40 CFR 1506.1(a) and the 2020 Response to Comments, which state 
that this provision allows certain activities to proceed, prior to a 
ROD or FONSI, so long as they do not have an adverse environmental 
impact or limit the

[[Page 49955]]

choice of reasonable alternatives.\86\ It also is responsive to 
comments received on the 2020 rule expressing concern that the proposed 
language could allow pre-decisional activities to proceed that would 
inappropriately narrow the range of alternatives considered by an 
agency. To address this concern, these commenters requested that the 
CEQ clarify in the regulations that these pre-decisional activities 
cannot limit the range of alternatives an agency considers under 
NEPA.\87\ CEQ's proposed amendments to this paragraph would provide 
clarity on this issue within the regulatory text.
---------------------------------------------------------------------------

    \86\ 2020 Response to Comments, supra note 63, at 356.
    \87\ Id. at 355.
---------------------------------------------------------------------------

    CEQ also proposes to strike ``required'' in paragraph (c). This 
edit is consistent with Sec.  1506.11, which encourages, but does not 
require, the use of programmatic environmental reviews.
2. Adoption (Sec.  1506.3)
    The CEQ regulations have always allowed agencies to adopt all or 
part of an EIS. The 2020 regulations expanded the adoption provisions 
to codify longstanding agency practice of adopting EAs and explicitly 
allowed for adoption of other agencies' prior CE determinations. CEQ 
has heard from multiple stakeholders, including clean energy and other 
stakeholders, that CEQ should retain these provisions because they 
create efficiencies in the NEPA process. Conversely, other 
stakeholders, including environmental organizations, have raised 
concerns about potential abuse of the adoption process, especially for 
CE determinations. CEQ proposes changes to this provision to facilitate 
use of these efficiency mechanisms in an appropriate and transparent 
manner. CEQ proposes modifications to Sec.  1506.3 to improve clarity, 
reduce redundancy, and ensure that when a Federal agency adopts an EIS, 
EA, or CE determination, the agency conducts an independent review to 
determine that the EIS, EA, or CE determination meets certain basic 
standards. CEQ also proposes to add new requirements regarding the 
adoption of another agency's CE determination to increase public 
transparency.
    In paragraph (a), CEQ proposes to strike the language requiring an 
EIS, EA, or CE determination to meet relevant standards and instead 
capture the standards in paragraphs (b) through (d) addressing adoption 
of EISs, EAs, and CE determinations, respectively. CEQ proposes to 
replace this clause with a statement that requires adoption to be done 
``consistent with this section.'' CEQ proposes to remove ``Federal'' as 
unnecessary and to make clear that agencies can adopt NEPA documents 
prepared by non-Federal entities that are doing so pursuant to 
delegated authority from a Federal agency. See, e.g., 23 U.S.C. 327.
    Accordingly, in paragraph (b), CEQ proposes to add introductory 
text clarifying the standard for adopting an EIS. The language would 
provide that an agency may adopt a draft or final EIS, or a portion of 
a draft or final EIS, if the adopting agency independently reviews the 
statement and concludes it meets the standards for an adequate 
statement pursuant to the CEQ regulations and the agency's NEPA 
procedures. In paragraph (b)(1), which addresses adoption of an EIS for 
actions that are substantially the same, CEQ proposes to insert ``and 
file'' after ``republish'' to improve consistency with Sec.  1506.9 and 
because agencies must both publish the EIS and file it with EPA. 
Further in paragraph (b)(1), CEQ proposes to add text to clarify that 
agencies should supplement or reevaluate an EIS if the agency 
determines that the EIS requires additional analysis. For example, this 
may be necessary if an agency is adopting an EIS for an action that was 
evaluated 5 years earlier, and there is more recent data or updated 
information available on one of the categories of effects. In such 
instances, the agency would adopt the EIS, prepare a supplemental 
analysis reevaluating the particular category of effects for which 
updated information is available, and issue both for public comment. 
Similarly, if an action is not substantially the same and the adopting 
agency determines that the EIS requires supplemental analysis, the 
agency would treat the EIS as a draft, prepare the additional analysis, 
and publish the new draft EIS for notice and comment. Where a proposed 
action is not substantially the same, an agency must, at minimum, 
supplement the adopted EIS to ensure it covers its proposed action.
    Additionally, in paragraph (b)(2), which addresses adoption of an 
EIS by a cooperating agency, CEQ proposes to clarify that this 
provision is triggered when a cooperating agency does not issue a joint 
or concurrent ROD consistent with Sec.  1505.2. For example, this 
provision covers instances when a cooperating agency adopts an EIS for 
an action the cooperating agency did not anticipate at the time the EIS 
was issued, such as a funding action for a project that was not 
contemplated at the time of the EIS. In such instances, the cooperating 
agency may issue a ROD adopting the EIS of the lead agency without 
republication. CEQ proposes to strike the text at the end of paragraph 
(b)(2) regarding independent review because that standard would be 
captured in paragraph (b).
    In paragraph (c), CEQ proposes to add introductory language to 
clarify the standard for adopting an EA, which mirrors the standard for 
adoption of an EIS. CEQ similarly proposes edits to align the process 
with EISs by clarifying that the adopting agency may adopt the EA, and 
supplement or reevaluate it as necessary, in its FONSI.
    For additional clarity, CEQ proposes to add ``determinations'' to 
the title of paragraph (d). CEQ also proposes to revise this paragraph 
to improve readability and clarify that the adopting agency is adopting 
another agency's already made determination that a CE applies to a 
particular proposed action where the adopting agency's proposed action 
is substantially the same. This provision does not allow an agency to 
unilaterally use another agency's CE for an independent proposed 
action; rather, that process is addressed in Sec.  1501.4(e).
    To ensure that there is public transparency for adoption of CE 
determinations, like adoption of EAs and EISs, CEQ proposes to require 
agencies to document and publish their adoption of CE determinations, 
such as on their website. Proposed changes to paragraph (d)(1) would 
specify that agencies must document a determination that the proposed 
action is substantially the same as the action covered by the original 
CE determination, and there are no extraordinary circumstances present 
requiring preparation of an EA or EIS. Because agencies typically 
already make such determinations in the course of adopting CE 
determinations for actions that are substantially the same, CEQ does 
not view this documentation requirement as onerous or time consuming.
    Finally, CEQ proposes to add paragraph (d)(2) requiring agencies to 
publicly disclose when they are adopting a CE determination. This 
proposed change is intended to increase transparency on use of CEs in 
response to feedback from stakeholders that they often do not know when 
an agency is proceeding with a CE. This adds a standard to adoption of 
CE determinations that is similar to the practice for adoption of EAs 
and EISs. Agencies, however, would have flexibility to determine how to 
make this information publicly available, including through posting on 
an agency's website.

[[Page 49956]]

3. Agency Responsibility for Environmental Documents (Sec.  1506.5)
    CEQ proposes modification and additions to Sec.  1506.5 to clarify 
the requirements related to a Federal agency's role in preparing 
environmental documents and for consistency with section 107(f) of 
NEPA, which requires agencies to prescribe procedures to allow project 
sponsors to prepare EAs and EISs under the agencies' supervision and to 
independently evaluate and take responsibility for such documents. The 
2020 rule amended this provision to allow an applicant to prepare EISs 
on behalf of the agency; however, the 2023 amendments to NEPA make 
clear that agencies must establish procedures for project sponsors to 
prepare environmental documents, not the CEQ regulations. CEQ 
understands the 2023 amendments to NEPA to use the terms applicant and 
project sponsor interchangeably and, therefore, CEQ proposes to remove 
references to applicants from this section other than to cross-
reference the requirement that agencies establish procedures in their 
agency NEPA procedures for project sponsors to prepare environmental 
documents. See section II.I.2. However, CEQ notes that applicants and 
project sponsors may still provide information to agencies so that they 
or their contractors may prepare environmental documents consistent 
with Sec.  1506.5(b).
    In paragraph (a), CEQ proposes to clarify that, regardless of who 
prepares an environmental document, the agency must ensure they are 
prepared with professional and scientific integrity using reliable data 
and resources, consistent with sections 102(2)(D) and (2)(E) of NEPA, 
and exercise its independent judgment to review, take responsibility 
for, and briefly document its determination that the document meets all 
necessary requirements and standards related to NEPA, the CEQ 
regulations, and the agency's NEPA procedures. Agencies do not need to 
document this determination separately and, for example, could include 
a certification statement in the environmental document.
    Paragraph (b) would provide that agencies can authorize a 
contractor to draft a FONSI or ROD, but the agency is responsible for 
its accuracy, scope, and contents. Because a FONSI or ROD represents an 
agency's conclusions regarding potential environmental impacts and 
other aspects of a proposed action, CEQ proposes these changes to 
exclude applicants from directly preparing these documents and to 
clarify the role of contractors. A lead agency must prescribe 
procedures to allow a project sponsor to prepare an environmental 
assessment or an environmental impact statement, consistent with 
section 107(f) of NEPA, and CEQ proposes to require agencies to include 
these procedures as part of their agency NEPA procedures in Sec.  
1507.3(c)(12). Finalizing and verifying the contents of these decision 
documents is appropriately the responsibility of the Federal agency and 
is consistent with longstanding agency practice.
    CEQ proposes to revise paragraph (b)(4) to clarify that the Federal 
agency is responsible for preparing a disclosure statement for the 
contractor to execute, specifying that the contractor does not have any 
financial or other interest in the outcome of the proposed action. The 
proposed language is generally consistent with the approach in the 1978 
regulations.
    Finally, CEQ proposes to remove the paragraph headings because they 
do not accurately or helpfully describe the contents of the paragraphs.
4. Further Guidance (Sec.  1506.7)
    CEQ proposes to simplify Sec.  1506.7(a) by deleting references to 
Executive Orders that have been revoked. CEQ will continue to provide 
guidance concerning NEPA and its implementation on an as-needed basis. 
Any such guidance will be consistent with NEPA, the CEQ regulations, 
and any other applicable requirements. Future guidance could include 
updates to existing CEQ guidance \88\ or new guidance. CEQ also 
proposes to update paragraph (b) to reflect the date upon which a final 
rule is effective. If there is a conflict between existing guidance and 
an issued final rule, the final rule would prevail after the date upon 
which it becomes effective.
---------------------------------------------------------------------------

    \88\ See CEQ, CEQ Guidance Documents, https://ceq.doe.gov/guidance/guidance.html.
---------------------------------------------------------------------------

5. Proposals for Regulations (40 CFR 1506.9)
    CEQ proposes to strike 40 CFR 1506.9, ``Proposals for 
regulations.'' The 2020 rule added this provision to allow agencies to 
substitute processes and documentation as part of the rulemaking 
process for corresponding requirements in these regulations.\89\ Since 
1978, the CEQ regulations have encouraged agencies to combine 
environmental documents with any other agency document to reduce 
duplication and paperwork (40 CFR 1506.4), and agencies also may 
combine procedural steps, for example, to satisfy the public comment 
requirements of a rulemaking process and NEPA. See Sec.  1507.3(c)(5). 
As such, CEQ expects that the provision at 40 CFR 1506.9 is unnecessary 
to achieve the desired effect of improved efficiency. Removing this 
section would avoid confusion and controversy over whether the 
procedures of a separate process meet the requirements of CEQ's 
regulations. Further, courts have questioned whether separate 
regulatory processes can be a substitute for NEPA in some cases. See 
e.g., Sierra Club v. Fed. Energy Regul. Comm'n, 867 F.3d 1357, 1375 
(D.C. Cir. 2017) (``[T]he existence of permit requirements overseen by 
another [F]ederal agency or [S]tate permitting authority cannot 
substitute for a proper NEPA analysis.''). Additionally, CEQ does not 
consider it appropriate to single out one particular type of action--
rulemaking--for aligning or combining procedural steps. Indeed, one of 
the key objectives of agency NEPA procedures is to integrate the NEPA 
process into other agency processes. Therefore, CEQ suggests the more 
prudent approach is for agencies to combine NEPA reviews with other 
reviews for rulemaking, similar to longstanding agency practice to 
combine NEPA documents with other review processes, such as compliance 
with section 106 of the National Historic Preservation Act or section 7 
of the Endangered Species Act, or set out processes in their NEPA 
procedures to comply concurrently with multiple legal requirements.
---------------------------------------------------------------------------

    \89\ 2020 Final Rule, supra note 36, at 43338-39.
---------------------------------------------------------------------------

6. Filing Requirements (Sec.  1506.9)
    CEQ proposes to redesignate 40 CFR 1506.10 as Sec.  1506.9, which 
would restore the same numbering for this and subsequent sections used 
in the 1978 regulations. CEQ proposes to replace the acronym for EPA 
with the full name ``Environmental Protection Agency'' here and in 
Sec.  1506.10, consistent with the format in the rest of the CEQ 
regulations. CEQ also proposes to clarify that agencies must notify EPA 
when they adopt an EIS consistent with Sec.  1506.3(b). CEQ proposes 
this change to codify common practice and guidance from EPA.\90\ EPA 
notification ensures initiation of the appropriate comment or review 
period. Such notification, even where a cooperating agency is adopting 
without public comment consistent

[[Page 49957]]

with Sec.  1506.3(b)(1), improves transparency to the public regarding 
the status of an EIS and also helps track the status of EISs across the 
Federal Government.
---------------------------------------------------------------------------

    \90\ See EPA, Environmental Impact Statement Filing Guidance, 
https://www.epa.gov/nepa/environmental-impact-statement-filing-guidance. EPA must be notified when a Federal agency adopts an EIS 
to commence the appropriate comment or review period. If a Federal 
agency chooses to adopt an EIS written by another agency, and it was 
not a cooperating agency in the preparation of the original EIS, the 
EIS must be republished and filed with EPA.
---------------------------------------------------------------------------

7. Timing of Agency Action (Sec.  1506.10)
    To accommodate the change in numbering described in section II.H.6, 
CEQ proposes to renumber 40 CFR 1506.11 ``Timing of agency action'' to 
Sec.  1506.10. CEQ proposes in paragraph (b) to change ``may not'' to 
``shall not'' to eliminate a potential ambiguity. CEQ proposes changes 
to paragraph (c)(1) to update this provision to reflect current 
practices within Federal agencies. Specifically, CEQ proposes to change 
references to ``appeal processes'' to ``administrative review 
processes'' and add examples, which can include processes such as 
appeals, objections, and protests. CEQ further proposes updates to 
align the text to provide flexibility in timing to agencies that use 
these administrative review processes and clarify that such a process 
may be initiated either prior to or after the filing and publication of 
a final EIS with EPA depending on the specifics of the agency's 
authorities. Depending on the agency involved and their associated 
authorities, administrative review processes generally allow other 
agencies or the public to raise issues about a decision and make their 
views known. CEQ proposes to clarify that the period for administrative 
review of the decision and the 30-day review period prescribed in 
paragraph (b)(2) for when a ROD can be issued may run concurrently. CEQ 
proposes these changes to reflect changes in Federal agency regulations 
and procedures since this text was promulgated in 1978 and to allow for 
greater efficiency.
    For example, the U.S. Department of Agriculture's Forest Service 
has an objections process outlined at 36 CFR part 218 where the public 
can object to a draft decision; these regulations replaced the prior 
appeal process formerly used by the agency. To initiate the objections 
process, Forest Service regulations require that the final EIS and a 
draft ROD be made available to the public, but the Forest Service does 
not have to publish the final EIS with EPA until the conclusion of the 
objections process. See 36 CFR 218.7(b). The objections process can 
take 120 to 160 days, during which the agency makes the final EIS 
widely available to the public. Allowing the agency to file the final 
EIS with EPA and issue a ROD at the same time as the conclusion of the 
objections process rather than waiting an additional 30 days following 
the official filing will add efficiency to the process. These proposed 
changes also would accommodate similar administrative review 
procedures. See e.g., 43 CFR 1610.5-2 (outlining the Bureau of Land 
Management (BLM) protest procedures).
    CEQ also proposes minor edits in paragraphs (d) and (e) for clarity 
and readability.
8. Emergencies (Sec.  1506.11)
    Consistent with changes in the preceding sections, CEQ proposes to 
renumber 40 CFR 1506.12 ``Emergencies'' to Sec.  1506.11. CEQ proposes 
to strike the last sentence stating other actions remain subject to 
NEPA review. This erroneously implies that actions covered by Sec.  
1506.11 are not subject to NEPA review. Instead, CEQ proposes to 
replace the sentence with language clarifying that alternative 
arrangements are not a waiver of NEPA; rather, they establish an 
alternative means for NEPA compliance.
    This longstanding provision on emergencies has generated some 
confusion \91\ as to whether, during emergencies, agency actions are 
exempted from NEPA review. CEQ proposes these changes to clarify that 
the regulations do not create a NEPA exemption; rather, they provide a 
pathway for compliance with NEPA where the exigencies of emergency 
situations do not provide sufficient time for an agency to complete an 
EIS for an action with significant environmental effects. As has been 
the long-standing practice, agencies may continue to determine how to 
proceed with actions to respond to emergencies that do not have 
significant environmental effects and that would ordinarily be analyzed 
through an EA. As discussed in section II.I.2, some agencies include 
procedures for addressing such situations in their agency NEPA 
procedures.
---------------------------------------------------------------------------

    \91\ 2020 Response to Comments, supra note 63, at 417-19.
---------------------------------------------------------------------------

    CEQ does not have the authority to exempt agency actions from NEPA, 
regardless of whether an emergency exists. The proposed changes to 
Sec.  1506.11 clarify that CEQ does not offer ``alternative 
arrangements'' to circumvent appropriate NEPA analysis but rather 
allows Federal agencies to establish alternative means for NEPA 
compliance to ensure that agencies can act swiftly to address 
emergencies while also meeting their statutory obligations under NEPA. 
CEQ's proposal would clarify that when emergencies arise, Sec.  1506.11 
allows agencies to adjust the means by which they achieve NEPA 
compliance. This approach is also consistent with CEQ's guidance on 
NEPA and emergencies, updated in 2020.\92\
---------------------------------------------------------------------------

    \92\ CEQ, Emergencies and the National Environmental Policy Act 
Guidance (Sept. 14, 2020), https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf.
---------------------------------------------------------------------------

9. Innovative Approaches to NEPA Reviews (Sec.  1506.12)
    CEQ proposes to add a new section to the regulations in Sec.  
1506.12 to allow CEQ to grant a request for modification to authorize 
Federal agencies to pursue innovative approaches to comply with NEPA 
and the regulations in order to address extreme environmental 
challenges. CEQ's intent is for this section to maximize agency 
flexibility, creativity, and efficiency while still meeting the 
requirements of NEPA and providing for sound environmental review. This 
is a new concept, distinct from the emergency provisions in Sec.  
1506.11, and different considerations apply for determining the 
existence of an extreme environmental challenge sufficient to trigger 
the proposed Sec.  1506.12 than those for determining the existence of 
an emergency requiring alternative arrangements pursuant to Sec.  
1506.11. For example, an extreme environmental challenge might have a 
longer time horizon than is typical for an emergency action. As another 
example, it might be appropriate for an agency to determine that a 
forest ecosystem presenting a high risk of severe wildfire that could 
threaten water supplies presents extreme environmental challenges, even 
though restoration activities would take many years to complete. The 
intent of this approach is to allow for agencies to take innovative 
approaches when exploring how to address extreme environmental 
challenges, which could include, for instance, sea level rise or 
increased wildfire risk, or bolstering the resilience of infrastructure 
to increased disaster risk from the effects of climate change; water 
scarcity; degraded water or air quality; species loss; disproportionate 
and adverse effects on communities with environmental justice concerns; 
imminent or reasonably foreseeable loss of historic, cultural, or 
Tribal resources; and impaired ecosystem health.
    Paragraph (a) would provide that the purpose of this section is to 
allow agencies to comply with NEPA using procedures modified from the 
requirements of these regulations to address extreme environmental 
challenges.
    Paragraph (b) would require CEQ approval for any innovative 
approaches and make clear that approval does not waive the requirement 
to comply with

[[Page 49958]]

the statute. Rather, this section establishes an alternative means for 
NEPA compliance to address extreme environmental challenges.
    Paragraph (c) would outline what an agency must include in its 
request for approval of an innovative approach. Agencies would have to 
identify each provision of the regulations for which they are 
requesting modification and explain how the innovative approach they 
propose to ensure NEPA compliance. Agencies also must explain the 
extreme environmental challenge they are trying to address, why the 
alternative means are needed to address the challenge, and how the 
innovative approach would facilitate sound and efficient environmental 
review. Finally, agencies would need to consult with any potential 
cooperating agencies and include a summary of their comments with the 
request.
    Paragraph (d) would provide CEQ's process for reviewing and 
approving such requests. Under this provision, CEQ would evaluate 
requests within 60 days and may choose whether to approve the approach, 
approve it with revision, or deny the request. Further, as is 
stipulated in paragraph (e), CEQ would post on its website all 
modification requests it has approved or denied.
    Examples of innovative approaches that could be the basis for a 
request include new ways to use information technology; cooperative 
agreements or work with local communities; methods more fully 
incorporating, while protecting, Indigenous Knowledge; new ways to work 
with project proponents and communities to advance proposals; and 
innovative tools for engaging the public and providing public comment 
opportunities, which could enhance participation from communities with 
environmental justice concerns. CEQ acknowledges that the proposed 
regulations would not include explicit limits in any of these areas. 
The intent of proposed Sec.  1506.12 is to help ensure that the 
regulations have the maximum ability to accommodate ideas not yet put 
forward to improve NEPA implementation. The proposed regulation would 
encourage innovation where needed to address extreme environmental 
challenges, consistent with the purposes and policies expressed in the 
NEPA statute including to ``promote efforts which will prevent or 
eliminate damage to the environment and biosphere and stimulate the 
health and welfare of [humans],'' 42 U.S.C. 4321, and ``attain the 
widest range of beneficial uses of the environment without degradation, 
risk to health or safety, or other undesirable and unintended 
consequences,'' 42 U.S.C. 4331(b)(3). CEQ invites public comment on 
this proposed provision to determine if it is necessary. Specifically, 
CEQ would like input on whether such a provision is needed to address 
extreme environmental challenges and what Federal agencies would be 
able to carry out under this proposed provision that they cannot 
currently accomplish in the current regulations. CEQ also invites 
public comment on whether CEQ should add additional procedures or 
limitations to ensure that innovative approaches are used 
appropriately.
10. Effective Date (Sec.  1506.13)
    CEQ proposes to remove the 2020 effective date and replace it with 
the date upon which a final rule is effective. CEQ notes that Federal 
agencies would not need to redo or supplement a completed NEPA review 
(e.g., where a CE determination, FONSI, or ROD has been issued) as a 
result of the issuance of this rulemaking.

I. Proposed Revisions to Agency Compliance (Part 1507)

    CEQ proposes substantive revisions to all sections in part 1507. 
CEQ invites comment on whether it should make other changes to this 
section.
1. Compliance (Sec.  1507.1)
    CEQ proposes to add a second sentence to Sec.  1507.1, restoring 
language from the 1978 regulations, to state that agencies have 
flexibility to adapt their implementing procedures to the requirements 
of other applicable laws. Restoring this language is consistent with 
the changes CEQ made to 40 CFR 1507.3 in its Phase 1 rulemaking to 
restore the agency discretion to tailor their NEPA procedures to their 
unique missions and contexts, creating opportunity for agencies to 
innovate and improve efficiency.
2. Agency Capability To Comply (Sec.  1507.2)
    CEQ proposes edits to Sec.  1507.2 to emphasize agencies' 
responsibilities under NEPA, including to incorporate the requirements 
added to section 102(2) of NEPA by the FRA, and require agencies to 
designate a Chief Public Engagement Officer. First, CEQ proposes to 
move the first sentence of 40 CFR 1507.2(a) to a new Sec.  1507.2(b) 
and require agencies to identify a Chief Public Engagement Officer who 
would be responsible for facilitating community engagement across the 
agency and, where appropriate, the provision of technical assistance to 
communities. Next, CEQ proposes to redesignate 40 CFR 1507.2(b) and (c) 
as Sec.  1507.2(c) and (d), respectively. Then, CEQ proposes to 
redesignate the existing 40 CFR 1507.2(d) through (f) as Sec.  
1507.2(h) through (j) and add a new paragraph (e) to require agencies 
to prepare environmental document with professional integrity 
consistent with section 102(2)(D) of NEPA. In a new paragraph (f), CEQ 
proposes to require agencies to make use of reliable data and 
resources, consistent with section 102(2)(E) of NEPA. And in a new 
paragraph (g), CEQ proposes to require agencies to study, develop, and 
describe technically and economically feasible alternatives, consistent 
with section 102(2)(F) of NEPA. Finally, in redesignated paragraph (j), 
CEQ proposes to delete the reference to E.O. 13807 because E.O. 13990 
revoked E.O. 13807.
3. Agency NEPA Procedures (Sec.  1507.3)
    CEQ proposes several updates to Sec.  1507.3 to reorganize 
paragraphs to improve readability, consolidate related provisions, 
restore text from the 1978 regulations, and codify CEQ guidance on CEs.
    In paragraphs (a) and (b), CEQ would update the effective date to 
reflect the effective date of a final rule. In paragraph (b), CEQ 
proposes to give agencies 12 months after the effective date to develop 
proposed procedures and initiate consultation with CEQ to implement the 
CEQ regulations. CEQ also proposes moving, with some modification, 
language from paragraph (c) to paragraph (b) for clarity and to improve 
organization since the language is generally applicable to all agency 
NEPA procedures. CEQ would clarify that proposed procedures should 
facilitate efficient decision making and ensure that agencies make 
decisions in accordance with the policies and requirements of NEPA.
    In paragraph (b)(2), CEQ proposes to change ``adopting'' to 
``issuing'' to avoid confusion with adoption under Sec.  1506.3. CEQ 
also proposes to restore text from the 1978 regulations requiring 
agencies to continue to review their policies and procedures and revise 
them as necessary to be in full compliance with NEPA. The 2020 rule 
deleted this language as redundant to language added to 40 CFR 
1507.3(b) requiring agencies to update their procedures to implement 
the final rule.\93\ CEQ is proposing to restore this language because 
CEQ views the requirement for an agency to continue to review their 
policies and procedures as different than the requirement in paragraph 
(b) to initially update procedures consistent with a final rule.

[[Page 49959]]

Further, restoring this requirement is consistent with the proposal in 
paragraph (c)(9) for agencies to review CEs at least every 10 years. 
CEQ proposes a new paragraph (b)(3) to explicitly clarify that, 
consistent with longstanding practice, the issuance of new agency 
procedures or an update to existing agency procedures is not subject to 
NEPA review. To align with these changes with paragraph (b) and its 
paragraphs, CEQ proposes to strike the first clause in 40 CFR 1507.3(e) 
because it is unnecessary and could create confusion and move the other 
text in 40 CFR 1507.3(e) into Sec.  1507.3(c) as discussed below. This 
provision does not provide any additional direction given the 
regulations' longstanding existing requirements that agencies develop 
agency NEPA procedures, and CEQ determinations that they conform to the 
NEPA regulations. Further, its requirement that agency procedures 
``comply'' with the CEQ regulations could be read to suggest that 
agencies must complete a NEPA review when establishing their 
procedures.
---------------------------------------------------------------------------

    \93\ 2020 Final Rule, supra note 36, at 43340.
---------------------------------------------------------------------------

    Paragraphs (c) and (c)(1) through (c)(10) would list the items that 
all agency NEPA procedures must include. CEQ proposes minor revisions 
to paragraphs (c)(1) through (c)(4) to improve clarity and conciseness. 
CEQ proposes to modify paragraph (c)(3) to clarify that procedures 
should integrate environmental review into agency decision-making 
processes so decision makers can make use of them in making the 
decision. CEQ proposes to modify paragraph (c)(5) to emphasize that 
combining environmental documents should be done to facilitate sound 
and efficient decision making and avoid duplication. CEQ proposes to 
strike the language from this paragraph allowing agencies to designate 
and rely on other procedures or documents to satisfy NEPA compliance. 
As discussed further in sections II.C.1 and II.C.2, CEQ has concerns 
about this language added by the 2020 rule to substitute other reviews 
as functionally equivalent for NEPA compliance, and therefore proposes 
to remove it.
    To consolidate into one paragraph the required aspects of agency 
NEPA procedures, CEQ proposes to move 40 CFR 1507.3(e)(1), (e)(2), 
(e)(2)(i), and (e)(2)(iii) to paragraphs (c)(6), (c)(7), (c)(7)(i) and 
(c)(7)(ii), respectively, with minor wording modification for 
readability. CEQ proposes to move with modification 40 CFR 
1507.3(e)(2)(ii), requiring agencies to establish CEs and identify 
extraordinary circumstances to paragraph (c)(8). CEQ proposes in 
paragraphs (c)(8)(i) through (c)(8)(iii) to include more specificity 
about the process for establishing new or revising existing CEs 
consistent with CEQ's 2010 CE guidance and agency practice. Paragraph 
(c)(8)(i) would include the existing requirement from 40 CFR 
1507.3(e)(2)(i) that agencies identify when documentation is required 
for a determination that a CE applies to a proposed action. Paragraph 
(c)(8)(ii) would require agencies to substantiate new or revised CEs 
and make the documentation publicly available. This is consistent with 
the 2010 guidance and CEQ's longstanding practice requiring agencies to 
demonstrate that agency activities are eligible for CEs.\94\ CEQ 
proposes to add paragraph (c)(8)(iii) to require agencies to describe 
how agencies will consider extraordinary circumstances; this 
requirement is currently addressed in existing 40 CFR 1507.3(c)(2)(ii).
---------------------------------------------------------------------------

    \94\ CE Guidance, supra note 9.
---------------------------------------------------------------------------

    CEQ proposes to add paragraph (c)(9) to require agencies to include 
in their NEPA procedures a process for reviewing their CEs every 10 
years. This would codify recommendations in CEQ's guidance on 
establishing CEs,\95\ which encourages agencies to review CEs 
periodically. While the guidance recommends every 7 years,\96\ CEQ is 
proposing for review to occur at least every 10 years. In CEQ's 
experience, it can take an agency a year or more to conduct such a 
review and revision given the steps involved, including conducting the 
review, developing a proposal to update procedures to reflect the 
review, consulting with CEQ, soliciting public comment, developing 
final procedures, and receiving a CEQ conformity determination. Federal 
agencies should review their CEs for multiple reasons, including to 
determine if CEs remain useful, whether they should modify them, and to 
determine if circumstances have changed resulting in an existing 
category raising the potential for significant effects.
---------------------------------------------------------------------------

    \95\ Id.
    \96\ Id. at 16.
---------------------------------------------------------------------------

    CEQ proposes to move 40 CFR 1507.3(e)(3) to paragraph (c)(10) 
without substantive change. Finally, CEQ proposes to move the 
requirement for agencies to explain in their NEPA procedures where 
interested persons can get information on EISs and the NEPA process 
from 40 CFR 1506.6(e) to Sec.  1507.3(c)(11) and add a reference to EAs 
as well.
    CEQ proposes to codify section 107(f) of NEPA in a new paragraph 
(c)(12) requiring agencies to include procedures, where applicable, to 
allow a project sponsor to prepare EAs and EISs consistent with Sec.  
1506.5. Since not all agency actions involve project sponsors, CEQ 
proposes to include ``where applicable'' to qualify this requirement. 
CEQ includes ``consistent with Sec.  1506.5'' so that such procedures 
would ensure environmental documents prepared by project sponsors (or a 
contractor on the project sponsor's behalf) are prepared with 
professional and scientific integrity, and ensure that the agency 
independently evaluates and takes responsibility for the contents of 
such documents. It also would ensure agencies require project sponsors 
to execute a disclosure statement to address financial or other 
interests. In addition to procedures, agencies may provide project 
sponsors with guidance and assist in the preparation of the documents 
consistent with Sec.  1506.5(b)(1). CEQ invites comment on whether it 
should include additional provisions that agencies should consider or 
address in establishing such procedures.
    CEQ proposes to delete the provisions in 40 CFR 1507.3(d) and its 
paragraphs, which recommend agency procedures identify different 
classes of activities or decisions that may not be subject to NEPA. CEQ 
proposes to revise Sec.  1507.3(d) to provide a list of items that 
agencies may include in their procedures, as appropriate, which would 
include, at paragraph (d)(1), identifying activities or decisions that 
are not subject to NEPA. Proposing to delete the specific categories of 
such activities or decisions is consistent with the proposed changes to 
Sec.  1501.1. See section II.C.1 and II.C.2. Paragraph (d)(2) would 
allow agencies to include processes for emergency actions that would 
not result in significant environmental effects. This provision is 
similar to CEQ's own emergency process for EISs provided in Sec.  
1506.11 but relates to activities that would not require preparation of 
an EIS. Some agencies have programs that focus on these types of 
emergency actions and may need to consider special arrangements for 
their environmental assessments in these circumstances. These special 
arrangements could focus on the format of the documents, special 
distribution and public involvement procedures, and timing 
considerations. Some agencies have already established such processes 
in their procedures to ensure efficient NEPA compliance in an 
emergency. See, e.g., 36 CFR 220.4(b); Dep't of Homeland Sec., 
Instruction Manual #023-01-001-01, Section VI.\97\

[[Page 49960]]

CEQ proposes to move, without modification, 40 CFR 1507.3(f)(1) and 
(f)(2) to paragraphs (d)(3) and (d)(4), respectively. CEQ proposes to 
remove 40 CFR 1507.3(f)(4) regarding combining the agency's EA process 
with its scoping process as unnecessary. Section 1501.5(j) clarifies 
that agencies can employ scoping at their discretion when it will 
improve the efficiency and effectiveness of EAs, including combining 
scoping with a comment period on a draft EA. In addition, CEQ proposes 
to remove, as superfluous, the first sentence of 40 CFR 1507.3(f)(3) 
regarding lengthy periods between an agency's decision to prepare an 
EIS and actual preparation, as the regulations do not prescribe 
specific timelines for preparation of environmental documents. As 
discussed in section II.D.3, CEQ proposes to move the second sentence 
of 40 CFR 1507.3(f)(3) regarding supplemental notices when an agency 
withdraws, cancels, or otherwise ceases the consideration of a proposed 
action before completing an EIS to Sec.  1502.4(f) with modifications.
---------------------------------------------------------------------------

    \97\ https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
---------------------------------------------------------------------------

    Finally, as discussed in section II.C.3, CEQ is proposing to strike 
40 CFR 1507.3(f)(5) and replace it with a provision in Sec.  1501.4(e) 
that is consistent with the process established by section 109 of NEPA 
for adoption or use of another agency's CE.
4. Agency NEPA Program Information (Sec.  1507.4)
    CEQ proposes revisions to Sec.  1507.4, which describes the use of 
agency websites and other information technology to promote 
transparency and efficiency in the NEPA process. In paragraph (a), CEQ 
proposes revisions to remove ``environmental'' before ``documents'' 
because ``environmental documents'' is a defined term, and the intent 
of the sentence is to refer to NEPA-related information and documents 
more broadly; CEQ proposes the same edit in paragraph (a)(1). CEQ also 
proposes to require agencies to provide on their websites or other 
information technology tools (to account for new technologies) their 
agency NEPA procedures and a list of EAs and EISs that are in 
development and complete. CEQ proposes to revise paragraph (a)(2) to 
encourage agencies to post their environmental documents to their 
websites. CEQ proposes to encourage rather than simply allow agencies 
to include the information listed in paragraphs (a)(1) through (a)(4). 
Finally, CEQ proposes edits to paragraph (b), which promotes 
interagency coordination of environmental program websites and shared 
databases, to provide agencies with additional flexibility and clarify 
that the section is not limited to the listed technology.

J. Proposed Revisions to Definitions (Part 1508)

    Within part 1508, CEQ proposes revisions to the definitions of 
``cooperating agency,'' ``effects'' or ``impacts,'' ``environmental 
assessment,'' ``environmental document,'' ``environmental impact 
statement,'' ``finding of no significant impact,'' ``human 
environment,'' ``lead agency,'' ``major Federal action,'' 
``mitigation,'' ``notice of intent,'' ``page,'' ``scope,'' and 
``tiering.'' CEQ proposes to add definitions for ``environmental 
justice,'' ``environmentally preferable alternative,'' ``extraordinary 
circumstances,'' ``joint lead agency,'' ``participating Federal 
agency,'' ``programmatic environmental document,'' and ``significant 
effects.''
    CEQ does not propose substantive edits to any other definitions, 
but would redesignate the paragraphs to keep the list of terms in 
alphabetical order. CEQ invites comment on whether CEQ should modify 
other definitions or add new definitions. In particular, CEQ invites 
comment on whether it should define any additional terms used in NEPA, 
as amended by the FRA, including ``applicant'' or ``project sponsor.'' 
CEQ is not proposing to separately define the phrase ``communities with 
environmental justice concerns,'' but intends that phrase would mean 
communities that do not experience environmental justice as defined in 
Sec.  1508.1(k). CEQ is particularly interested in comment on whether 
to provide a separate definition of ``communities with environmental 
justice concerns,'' and if so, how the regulations should define that 
term.
1. Cooperating Agency (Sec.  1508.1(e))
    CEQ proposes to revise the definition of ``cooperating agency'' in 
Sec.  1508.1(e) for clarity and consistency with the definition of 
``cooperating agency'' in section 111(2) of NEPA defining this term to 
mean ``any Federal, State, Tribal, or local agency with jurisdiction by 
law or special expertise that has been designated as a cooperating 
agency by the lead agency . . . .''
2. Effects or Impacts (Sec.  1508.1(g))
    In Sec.  1508.1(g), CEQ proposes to make clarifying edits and to 
add and modernize examples. Paragraph (g)(4) lists common types of 
effects that may arise during NEPA review. CEQ proposes to update the 
list to add disproportionate and adverse effects to communities with 
environmental justice concerns and climate change-related effects. For 
climate change effects, CEQ proposes to clarify that this can include 
both the contributions to climate change from a proposed action and its 
alternatives as well as the potential effects of climate change on the 
proposed action and its alternatives. These changes would update the 
definition to include effects that have been an important part of NEPA 
analysis for more than a decade and will continue to be relevant, 
consistent with best available science and NEPA's requirements. Also, 
CEQ proposes these changes in response to comments received during the 
Phase 1 rulemaking that the definition of ``effects'' or ``impacts'' 
should explicitly address environmental justice and climate change.\98\
---------------------------------------------------------------------------

    \98\ Phase 1 Response to Comments, supra note 48, at 87, 99.
---------------------------------------------------------------------------

3. Environmental Assessment (Sec.  1508.1(h))
    CEQ proposes to update the definition of ``environmental 
assessment'' in Sec.  1508.1(h) for consistency with sections 106(b)(2) 
and 111(4) of NEPA, 40 CFR 1501.5, and longstanding agency practice. 
CEQ proposes to strike ``prepared by'' and change it to ``for which a 
Federal agency is responsible'' for consistency with section 107(f) of 
NEPA and Sec.  1506.5, which allow a contractor or project sponsor 
(following agency issuance of procedures) to prepare an EA but requires 
that the agency take responsibility for the accuracy of its contents 
irrespective of who prepares it. This change would be consistent with 
longstanding agency practice to allow applicants and contractors to 
prepare EAs, so long as the agency is ultimately responsible for the 
contents.
    To improve readability, CEQ proposes edits to add text from Sec.  
1501.5 clarifying that an agency prepares an EA when a proposed action 
is not likely to have a significant effect or the significance of the 
effects is unknown. CEQ also proposes to simplify language in the rest 
of the paragraph by deleting superfluous text. These proposed changes 
do not alter the intention that an EA is used to support an agency's 
determination whether to prepare an EIS (part 1502) or issue a FONSI 
(Sec.  1501.6).
4. Environmental Document (Sec.  1508.1(i))
    CEQ proposes to add ``record of decision'' to the definition of 
``environmental document'' in

[[Page 49961]]

Sec.  1508.1(i) for clarity. CEQ also proposes to add a documented CE 
determination to the definition to reflect the longstanding agency 
practice of documenting some CE determinations. This change also is 
consistent with the change CEQ proposes to Sec. Sec.  1501.4 and 1507.3 
to add references to CE determinations. Therefore, for clarity and 
efficiency, CEQ is proposing to incorporate documented CE 
determinations into the definition of ``environmental document.'' CEQ 
notes that section 111(5) of NEPA defines ``environmental document'' 
more narrowly to only include EISs, EAs, and FONSIs. However, CEQ is 
proposing to retain and expand the regulatory definition since the term 
is used more broadly in the CEQ regulations.
5. Environmental Impact Statement (Sec.  1508.1(j))
    CEQ proposes to change ``as required'' to ``that is required'' in 
the definition of EIS in Sec.  1508.1(j) for consistency with the 
definition of ``environmental impact statement'' in section 111(6) of 
NEPA.
6. Environmental Justice (Sec.  1508.1(k))
    CEQ proposes to add a new definition of ``environmental justice'' 
at Sec.  1508.1(k). This definition would align with the definition set 
forth in section 2(b) of E.O. 14096.\99\ This provision would define 
``environmental justice'' as the just treatment and meaningful 
involvement of all people so that they are fully protected from 
disproportionate and adverse human health and environmental effects and 
hazards, and have equitable access to a healthy, sustainable, and 
resilient environment. The proposed definition of environmental justice 
uses the phrase ``cumulative impacts,'' rather than the phrase 
``cumulative effects,'' which are used elsewhere in the proposed 
regulations. That is because the phrase ``cumulative impacts'' has a 
meaning in the context of environmental justice relating to the 
aggregate effect of multiple stressors and exposures on a person, 
community, or population. See, e.g., Environmental Protection Agency, 
Cumulative Impacts Research: Recommendations for EPA's Office of 
Research and Development (2022). CEQ views the evolving science on 
cumulative impacts as sufficiently distinct from the general meaning of 
cumulative effects under the NEPA regulations that using a different 
term could be helpful to agencies and the public. CEQ invites comment 
on this approach.
---------------------------------------------------------------------------

    \99\ E.O. 14096, supra note 20, at 25253.
---------------------------------------------------------------------------

7. Environmentally Preferable Alternative (Sec.  1508.1(l))
    CEQ proposes to add a new definition of ``environmentally 
preferable alternative'' at Sec.  1508.1(l). Since 1978, the CEQ 
regulations have required agencies to identify the environmentally 
preferable alternative or alternatives in the ROD (Sec.  1505.2(b)). 
While the regulations did not define the term, CEQ's Forty Questions 
document provided an explanation, upon which CEQ has based the proposed 
definition.\100\ The environmentally preferable alternative is the 
alternative that will best promote the national environmental policy as 
expressed in section 101 of NEPA. 42 U.S.C. 4331. Application of the 
term ``environmentally preferable alternative'' is also described in 
Sec.  1502.14(f) and discussed in section II.D.9.
---------------------------------------------------------------------------

    \100\ Forty Questions, supra note 4.
---------------------------------------------------------------------------

8. Extraordinary Circumstances (Sec.  1508.1(m))
    CEQ proposes to add a definition of ``extraordinary circumstances'' 
at Sec.  1508.1(m). The 1978 regulations included the meaning of 
extraordinary circumstances in the definition of ``categorical 
exclusion'' at 40 CFR 1508.4 (2019), which the 2020 rule moved to 40 
CFR 1501.4(b) (describing how to apply extraordinary circumstances when 
considering use of a CE) and 40 CFR 1507.3(e)(2)(ii) (requiring 
agencies to establish extraordinary circumstances for CEs in their 
procedures).\101\ CEQ proposes to create a standalone definition of 
``extraordinary circumstances'' to improve clarity when this term is 
used throughout the rule.
---------------------------------------------------------------------------

    \101\ 2020 Final Rule, supra note 36, at 43322, 43342-43.
---------------------------------------------------------------------------

    CEQ also proposes to add several examples of extraordinary 
circumstances to help agencies and the public understand common 
situations that agencies may consider in determining whether 
application of a CE is appropriate. The examples would include impacts 
on sensitive environmental resources, disproportionate and adverse 
effects on communities with environmental justice concerns, effects 
associated with climate change, and effects on historic properties or 
cultural resources. This list of examples would not be exclusive, and 
agencies would continue to have the discretion to identify 
extraordinary circumstances in their NEPA implementing procedures that 
are specific and appropriate to their particular actions and CEs 
consistent with Sec.  1507.3.
9. Finding of No Significant Impact (Sec.  1508.1(o))
    In the definition of FONSI in Sec.  1508.1(o), CEQ proposes to 
insert ``agency's determination that and'' after ``presenting the'' for 
consistency with the definition of FONSI in section 111(7) of NEPA, 
which defines the term to mean ``a determination by a Federal agency 
that a proposed agency action does not require the issuance of an 
environmental impact statement.''
10. Human Environment or Environment (Sec.  1508.1(p))
    CEQ proposes to clarify that ``human environment'' and 
``environment'' are synonymous in the regulations given that the latter 
is the more commonly used term. CEQ proposes a minor edit to ``human 
environment'' in Sec.  1508.1(p) to remove ``of Americans'' after 
``present and future generations.'' This minor edit improves 
consistency with NEPA in section 101(a), which speaks more generally 
about the impact of people's ``activity on the interrelations of all 
components of the natural environment'' and the need ``to create and 
maintain conditions under which [humans] and nature can exist in 
productive harmony.'' 42 U.S.C. 4331(a).
    In the 2020 rule, CEQ changed ``people'' to ``of Americans,'' 
explaining that it was done to be consistent with section 101(a) of 
NEPA.\102\ However, CEQ now considers this explanation to overlook the 
context in which the phrase ``present and future generations of 
Americans'' is used in section 101(a). That paragraph of the Act refers 
to Americans at the end of the last sentence after using the broader 
term ``man'' three times. A reasonable interpretation is that human 
environment refers broadly to the interrelationship between people and 
the environment. The phrase ``present and future generations of 
Americans'' is used in a narrower context to ``fulfill the social, 
economic, and other requirements of present and future generations of 
Americans.'' 42 U.S.C. 4331(a).
---------------------------------------------------------------------------

    \102\ Id. at 43344-45.
---------------------------------------------------------------------------

11. Joint Lead Agency (Sec.  1508.1(q))
    CEQ proposes to add a definition for ``joint lead agency'' 
consistent with the usage of that term in section 107(a)(1)(B) of NEPA 
and Sec.  1501.7(b) and (c).

[[Page 49962]]

12. Lead Agency (Sec.  1508.1(s))
    CEQ proposes to revise the definition of ``lead agency'' for 
consistency with the definition of ``lead agency'' in section 111(9) of 
NEPA and to expand the definition of ``lead agency'' in Sec.  1508.1(s) 
to also include EAs, consistent with longstanding practice.
13. Major Federal Action (Sec.  1508.1(u))
    CEQ proposes to move the definition of ``major Federal action'' 
currently provided in 40 CFR 1508.1(q) to Sec.  1508.1(u), revise it to 
clarify the list of example activities or decisions that meet the 
definition, and revise the list of exclusions from the definition 
consistent with section 111(10) of NEPA. CEQ notes that the 
determination of whether an activity or decision is a major Federal 
action is a fact-specific analysis that agencies have long engaged in 
to determine where they have substantial control and responsibility to 
consider environmental effects in their decision making.
    CEQ proposes to reorder and revise the definition to list the 
examples of activities or decisions that may be included in the 
definition of ``major Federal action'' in paragraph (u)(1), 
redesignating current 40 CFR 1508.1(q)(3)(i) through (q)(3)(iv) as 
paragraphs (u)(1)(ii) through (u)(1)(v). To paragraph (u)(1), CEQ 
proposes to revise the current example in 40 CFR 1508.1(q)(2) in 
paragraph (u)(1)(i) and add one example of potential major Federal 
actions.
    First, CEQ proposes to strike 40 CFR 1508.1(q)(2) and replace it 
with paragraph (u)(1)(i) to include the granting of authorizations such 
as permits, licenses, and rights-of way. CEQ proposes to strike the 
existing examples since regulated activities would be addressed in this 
revised example, and the others are redundant to the other examples 
listed in paragraphs (u)(1)(ii) through (u)(1)(vi).
    Second, CEQ proposes to revise the phrase ``connected agency 
decisions'' to ``related agency decisions'' in paragraph (u)(1)(iv) to 
clarify that the concept in this paragraph is not meant to refer to 
``connected actions'' as defined in Sec.  1501.3. CEQ considers this a 
non-substantive, clarifying change to avoid any confusion with 
connected actions.
    Third, CEQ proposes to revise paragraph (u)(1)(v) to change 
``approval of'' to ``carrying out'' specific projects to address 
projects carried out directly by a Federal agency. CEQ proposes to 
strike ``located in a defined geographic area'' from the example of 
management activities; while this is merely an example, CEQ is 
concerned it could be read as limiting. CEQ also proposes to strike the 
sentence regarding permits and regulatory decisions as this would be 
addressed by the example in paragraph (u)(1)(i).
    Fourth, CEQ proposes to add a new example at Sec.  1508.1(u)(1)(vi) 
to explain when Federal financial assistance is a major Federal action. 
Generally, Federal financial assistance, other than minimal Federal 
funding, is a major Federal action where the Federal agency has 
authority and discretion over the financial assistance in a manner that 
could address environmental effects from the activities receiving the 
financial assistance. In such circumstances, the agency has sufficient 
control and responsibility over the use of the funds or the effects of 
the action for the decision to provide financial assistance to 
constitute a major Federal action consistent with the definition in 
section 111(10) of NEPA. This includes circumstances where the agency 
could deny the financial assistance, in whole or in part, due to 
environmental effects from the activity receiving the financial 
assistance, or could impose conditions on the financial assistance that 
could address the effects of such activity.
    To improve clarity and ensure appropriate application of NEPA, CEQ 
proposes this example of what a major Federal action may include. CEQ 
considers that, other than for minimal Federal Funding, where an agency 
has substantial control and responsibility over a recipient's 
environmental effects or sufficient discretion to consider the 
environmental effects when making decisions, the appropriate approach 
is for agencies to identify the corresponding scope of analysis rather 
than excluding an activity or decision from NEPA review altogether. For 
example, if a Federal agency operates a loan guarantee program, the 
agency may have discretion in the types of activities to which it might 
issue a loan guarantee. A NEPA review that analyzes the environmental 
effects of potential project types could help inform how the agency 
designs the program. Depending on the terms of the loan guarantee 
program, the agency may have substantial control and responsibility 
over the use of the funds such that an environmental analysis can 
inform the decision making. As noted in section II.C.2 and earlier in 
this section, this is a fact-specific analysis agencies undertake based 
on the specifics of their authority for a particular action.
    In Sec.  1508.1(u)(2), CEQ proposes to replace the exclusions 
currently in 40 CFR 1508.1(q)(1)(i) through (vi) with the exclusions 
from the definition of major Federal action codified in the definition 
in section 111(10)(B) of NEPA. Paragraph (u)(2)(i)(A) and (B) would 
include the exclusion of non-Federal actions with no or minimal 
funding; or with no or minimal Federal involvement where the agency 
cannot control the outcome of the project consistent with section 
111(10)(B)(i) of NEPA. These exclusions would replace the current 
exclusion in 40 CFR 1508.1(q)(1)(vi), which CEQ proposes to strike. CEQ 
invites comment on whether it should add additional provisions to the 
regulations to implement the ``minimal Federal funding'' exclusion in 
Sec.  1508.1(u)(2)(i)(A). Agencies currently evaluate the provision of 
minimal Federal funding based on specific factual contexts. CEQ is 
interested in whether additional procedures, including thresholds for 
the amount or proportion of Federal funding necessary for an agency 
action to constitute major Federal action, could increase 
predictability while ensuring that Federal agencies do not overlook 
effects to vital components of the human environment, including the 
health of children and vulnerable populations, drinking water, 
communities with environmental justice concerns, and similar 
considerations.
    Paragraph (u)(2)(ii) would include the exclusion of funding 
assistance solely in the form of general revenue sharing funds 
consistent with section 111(10)(B)(ii) of NEPA. This exclusion would 
replace the current, similar exclusion in 40 CFR 1508.1(q)(1)(v), which 
CEQ proposes to strike.
    Paragraph (u)(2)(iii) would include the exclusion of loans, loan 
guarantees, or other forms of financial assistance where a Federal 
agency does not exercise sufficient control and responsibility over the 
subsequent use of such financial assistance or the effects of the 
action, consistent with section 111(10)(B)(iii) of NEPA.
    Paragraph (u)(2)(iv) would include the exclusion of certain 
business loan guarantees provided by the Small Business Administration, 
consistent with section 111(10)(B)(iv) of NEPA. These exclusions would 
replace the current, similar exclusion in 40 CFR 1508.1(q)(1)(vii), 
which CEQ proposes to strike. In particular, CEQ proposes to strike the 
example currently in 40 CFR 1508.1(q)(1)(vii) for farm ownership and 
operating loan guarantees by the Farm Service Agency pursuant to 7 
U.S.C. 1925 and 1941 through 1949. CEQ considers it best left to 
agencies to identify exclusions from the definition of major Federal 
action absent specific statutory authority like those for the Small 
Business Administration loan guarantees.

[[Page 49963]]

    Next, CEQ proposes to move the existing exclusions, currently in 40 
CFR 1508.1(q)(1)(iv), (q)(1)(i), and (q)(1)(ii) to paragraphs (u)(2)(v) 
through (u)(2)(vii), respectively. Section 111(10)(B)(v) through (vii) 
of NEPA codified these exclusions. Paragraph (u)(2)(v) would exclude 
bringing judicial or administrative civil or criminal enforcement 
actions. Paragraph (u)(2)(vi) would exclude extraterritorial activities 
or decisions.\103\ Paragraph (u)(2)(vii) would exclude activities or 
decisions that are non-discretionary. CEQ notes that there may be 
activities or decisions that are partially non-discretionary. In such 
circumstances, an agency may conclude that the non-discretionary 
components of an activity or decision are not major Federal actions and 
exclude the non-discretionary components from analysis. In such 
circumstances, the agency would consider the discretionary components 
of the activity or decision. For example, if a statute mandated an 
agency to make an affirmative decision once a set of criteria are met, 
but the agency has flexibility in how to meet those criteria, the 
agency still has some discretion to consider alternatives and effects. 
Similarly, if a statute directs an agency to take an action, but the 
agency has discretion in how it takes that action, the agency can still 
comply with NEPA while carrying out its statutory mandate.
---------------------------------------------------------------------------

    \103\ CEQ notes that the statutory exclusion of these activities 
from the definition of major Federal action and therefore NEPA 
review does not change the scope of environmental effects that 
agencies should assess for actions that are subject to NEPA review.
---------------------------------------------------------------------------

    CEQ proposes to move the exclusion regarding final agency actions 
from 40 CFR 1508.1(q)(1)(iii) to Sec.  1508.1(u)(2)(viii) and make 
changes for consistency with section 106(a)(1). While section 106(a)(1) 
of NEPA includes this as a threshold factor for not requiring an EIS or 
EA, it is consistent with longstanding caselaw to exclude non-final 
agency actions from the definition of major Federal action. Therefore, 
CEQ proposes to include this as a threshold consideration as well as an 
exclusion from the definition of major Federal action.
    Finally, CEQ proposes a new exclusion in Sec.  1508.1(u)(2)(ix) for 
activities or decisions for projects approved by a Tribal Nation that 
occur on or involve land held in trust or restricted status when the 
activities involve no Federal funding or other Federal involvement. 
Recognizing the unique circumstances facing Tribal Nations due to the 
United States holding land in trust for them or the Tribal Nation 
holding land in restricted status, CEQ proposes this exclusion to 
clarify that activities or decisions for projects approved by a Tribal 
Nation on trust lands are not major Federal actions where such 
activities do not involve Federal funding or other Federal involvement. 
Tribal leaders raised this issue during consultations that CEQ held on 
its NEPA regulations and voiced concerns that the NEPA process placed 
Tribal Nations in a disadvantageous position relative to State and 
local governments because of the United States' ownership interest in 
Tribal lands. Categories of activities on trust lands that typically 
will not constitute major Federal actions include transfer of existing 
operation and maintenance activities of Federal facilities to Tribal 
groups, water user organizations, or other entities; human resources 
programs such as social services, education services, employment 
assistance, Tribal operations, law enforcement, and credit and 
financing activities not related to development; self-governance 
compacts for Bureau of Indian Affairs programs; service line agreements 
for an individual residence, building, or well from an existing 
facility where installation will involve no clearance of vegetation 
from the right-of-way other than for placement of poles, signs 
(including highway signs), or buried power/cable lines; and approvals 
of Tribal regulations or other documents promulgated in exercise of 
Tribal sovereignty, such as Tribal Energy Resource Agreements, 
certification of a Tribal Energy Development Organization, Helping 
Expedite and Advance Responsible Tribal Homeownership Act Tribal 
regulations, Indian Trust Asset Reform Act Tribal regulations and trust 
asset management plans, and Tribal liquor control ordinances.
14. Mitigation (Sec.  1508.1(w))
    CEQ proposes three edits to the definition of ``mitigation'' in 
Sec.  1508.1(w). First, CEQ proposes to change ``nexus'' to the more 
commonly used word ``connection'' to describe the relationship between 
a proposed action or alternatives and any associated environmental 
effects. Second, CEQ proposes to delete the sentence that NEPA ``does 
not mandate the form or adoption of any mitigation'' because this 
sentence is unnecessary and could mislead readers by not acknowledging 
that agencies may use other authorities to require mitigation or may 
incorporate mitigation in mitigated FONSIs (Sec.  1501.6) and RODs 
(Sec.  1505.2). Third, CEQ proposes to add the clause ``in general 
order of priority'' to the sentence, ``Mitigation includes'' which 
introduces the list of mitigation types. This change would clarify that 
the types of mitigation provided in paragraphs (u)(1) though (u)(5) are 
listed in general order of priority, consistent with the familiar 
``mitigation hierarchy.'' \104\ This list was prioritized in the 1978 
regulations with avoidance coming before other types of mitigation and 
this proposed addition highlights that intent, which is consistent with 
longstanding agency practice.\105\
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    \104\ See e.g., U.S. Dep't of the Interior, A Strategy for 
Improving the Mitigation Policies and Practices of the Department of 
the Interior 2-3 (Apr. 2014), https://www.doi.gov/sites/doi.gov/files/migrated/news/upload/Mitigation-Report-to-the-Secretary_FINAL_04_08_14.pdf (discussing the development of a 
``mitigation hierarchy''--which starts with avoidance--in the 
implementation of NEPA and the Clean Water Act); Bureau of Land 
Mgmt., H-1794-1, Mitigation Handbook (P) 2-1 (Sept. 22, 2021), 
https://www.blm.gov/sites/default/files/docs/2021-10/IM2021-046_att2.pdf (citing CEQ regulations and noting that the ``five 
aspects of mitigation (avoid, minimize, rectify, reduce/eliminate, 
compensate) are referred to as the mitigation hierarchy because they 
are generally applied in a hierarchical manner''); U.S. Env't Prot. 
Agency & U.S. Dep't of Def., Memorandums of Agreement (MOA); Clean 
Water Act Section 404(b)(1) Guidelines; Correction, 55 FR 9210, 9211 
(Mar. 12, 1990) (noting that under section 404 of the Clean Water 
Act, the Army Corps of Engineers evaluates potential mitigation 
efforts sequentially, starting with avoidance, minimization, and 
then compensation).
    \105\ See, e.g., 10 CFR 900.3 (defining a regional mitigation 
approach under NEPA as ``an approach that applies the mitigation 
hierarchy (first seeking to avoid, then minimize impacts, then, when 
necessary, compensate for residual impacts)''); Presidential 
Memorandum, Mitigating Impacts on Natural Resources From Development 
and Encouraging Related Private Investment, 80 FR 68743, 68745 (Nov. 
6, 2015) (addressing five agencies and noting that, ``[a]s a 
practical matter, [mitigation is] captured in the terms avoidance, 
minimization, and compensation. These three actions are generally 
applied sequentially . . . .''); Fed. Highway Admin., NEPA and 
Transportation Decisionmaking: Questions and Answers Regarding the 
Consideration of Indirect and Cumulative Impacts in the NEPA Process 
Question 9, https://www.environment.fhwa.dot.gov/nepa/QAimpact.aspx 
(describing the importance of ``sequencing,'' which refers to the 
process of prioritizing avoidance and minimization of effects over 
replacement or compensation for NEPA mitigation efforts).
---------------------------------------------------------------------------

15. Notice of Intent (Sec.  1508.1(y))
    CEQ proposes to modify the definition of notice of intent to 
include environmental assessments, as applicable. CEQ proposes this 
change for consistency with Sec.  1501.5(j), which provides that 
agencies may issue an NOI for an EA where it is appropriate to improve 
efficiency and effectiveness, and Sec.  1501.10(b)(3)(iii), which sets 
forth one of the three potential starting points from which deadlines 
are measured for environmental assessments consistent with section 
107(g)(1)(B)(iii).

[[Page 49964]]

16. Page (Sec.  1508.1(z))
    CEQ proposes to modify the definition of ``page'' consistent with 
section 107(e) of NEPA to exclude citations from the page limits for 
EISs and EAs. CEQ proposes to retain the exclusions for maps, diagrams, 
graphs, tables, and other means of graphically displaying quantitative 
or geospatial information from the definition of ``page'' to facilitate 
better NEPA documents. While agencies could move these visual 
representations of information to appendices, which could come at the 
end of an EIS or the end of EIS chapters, CEQ is concerned that this 
will make the documents less functional to decision makers and the 
public. Further, such graphical displays themselves could be considered 
appendices consistent with the ordinary definition of appendix--
supplementary material usually attached at the end of a piece of 
writing.\106\ CEQ invites comment on its proposed definition of 
``page.''
---------------------------------------------------------------------------

    \106\ Merriam-Webster, https://www.merriam-webster.com/dictionary/appendix.
---------------------------------------------------------------------------

17. Participating Federal Agency (Sec.  1508.1(bb))
    CEQ proposes to add a definition of ``participating Federal 
agency'' to Sec.  1508.1(bb) and define it consistent with the 
definition of the same term in section 111(8) of NEPA.
18. Programmatic Environmental Document (Sec.  1508.1(cc))
    CEQ proposes to add a definition of ``programmatic environmental 
document'' to Sec.  1508.1(cc) and define it consistent with the 
definition of the same term in section 111(11) of NEPA.
19. Scope (Sec.  1508.1(ii))
    CEQ proposes to expand the definition of ``scope'' to include EAs 
and revise the definition to include both the range and breadth of the 
actions, alternatives, and effects to be considered in an EIS or EA, 
consistent with CEQ's proposed relocation of the discussion of scope in 
Sec.  1501.3(b). As discussed further in section II.C.2, agencies have 
long examined the scope of their actions to determine what alternatives 
and effects they must analyze. This is a fact-specific analysis that 
agencies undertake informed by their statutory authority and control 
and responsibility over the activity. CEQ also proposes to strike the 
last sentence regarding tiering because it is not definitional language 
and is unnecessary because this concept is more fully addressed in 
Sec.  1501.11.
20. Significant Effects (Sec.  1508.1(kk))
    CEQ proposes to add a definition for ``significant effects'' to 
provide a definition for those effects that are of vital importance in 
the NEPA process in determining the appropriate level of review. The 
proposed definition would align with the restoration of the context and 
intensity factors for determining significance in Sec.  1501.3(d). CEQ 
proposes to define ``significant effects'' as adverse effects 
identified by an agency as significant based on the criteria set forth 
in Sec.  1501.3(d). This would clarify that beneficial effects are not 
significant effects as the phrase is used in NEPA and, therefore, do 
not require an agency to prepare an EIS. CEQ proposes this as an 
alternative approach to the proposal in Sec.  1501.3(d)(2)(i) where an 
action ``does not'' require an EIS when it would result only in 
significant beneficial effects. If CEQ includes this definition in the 
final rule, this approach would mean that an agency would not need to 
prepare an EIS if a proposed action's effects are exclusively 
beneficial. However, irrespective of the level of NEPA review, agencies 
would still need to analyze both adverse and beneficial effects in NEPA 
documents if they are reasonably foreseeable. CEQ invites comment on 
the definition, specifically on the inclusion of ``adverse'' in the 
definition, and comments on whether the approach in Sec.  
1501.3(d)(2)(i) or Sec.  1508.1(kk) is preferred and the reasons why. 
Finally, CEQ invites the public to submit any examples of EAs or EISs 
where there were significant effects that were purely beneficial.
21. Tiering (Sec.  1508.1(mm))
    CEQ proposes to revise the definition of tiering to cross reference 
the process as set forth in Sec.  1501.11. CEQ is proposing this 
revision to avoid any potential inconsistencies between the definition 
and the provisions of Sec.  1501.11.

III. Rulemaking Analyses and Notices

A. Executive Order 12866, Regulatory Planning and Review

    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs will review all significant rules.\107\ E.O. 13563 reaffirms 
the principles of E.O. 12866, calling for improvements in the Federal 
Government's regulatory system to promote predictability, reduce 
uncertainty, and use the best, most innovative, and least burdensome 
tools for achieving regulatory objectives.\108\ This proposed rule is a 
significant regulatory action under section 3(f)(1) of E.O. 12866 that 
CEQ submitted to OMB for review. The proposed changes would improve the 
CEQ regulations to benefit agencies and the public. Furthermore, an 
effective NEPA process can save time and reduce overall project costs 
by providing a clear process for evaluating alternatives and effects, 
coordinating agencies and relevant stakeholders including the public, 
and identifying and avoiding problems--including potential significant 
effects--that may occur in later stages of project development.\109\ 
Additionally, if agencies choose to consider additional alternatives 
and conduct clearer or more robust analyses, such analyses should 
improve societal outcomes by improving agency decision making. Because 
individual cases will vary, the magnitude of potential costs and 
benefits resulting from these proposed changes are difficult to 
anticipate, but CEQ has prepared a qualitative analysis in the 
accompanying regulatory impact analysis.
---------------------------------------------------------------------------

    \107\ Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 
1993).
    \108\ E.O. 13563, Improving Regulation and Regulatory Review, 76 
FR 3821 (Jan. 21, 2011).
    \109\ See generally Linda Luther, Cong. Rsch. Serv. R42479, The 
Role of the Environmental Review Process in Federally Funded Highway 
Projects: Background and Issues for Congress (2012), https://crsreports.congress.gov/product/pdf/R/R42479.
---------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272, Proper 
Consideration of Small Entities in Agency Rulemaking

    The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et 
seq., and E.O. 13272, Proper Consideration of Small Entities in Agency 
Rulemaking,\110\ require agencies to assess the impacts of proposed and 
final rules on small entities. Under the RFA, small entities include 
small businesses, small organizations, and small governmental 
jurisdictions. An agency must prepare an Initial Regulatory Flexibility 
Analysis unless it determines and certifies that a proposed rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b). The proposed 
rule would not directly regulate small entities. Rather, the proposed 
rule would apply to Federal agencies and set forth the process for 
their compliance with NEPA. Accordingly, CEQ hereby certifies that the 
proposed rule, if promulgated, would not have a significant economic 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \110\ 67 FR 53461 (Aug. 16, 2002).

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[[Page 49965]]

C. National Environmental Policy Act

    Under the CEQ regulations, major Federal actions may include 
regulations. When CEQ issued regulations in 1978, it prepared a 
``special environmental assessment'' for illustrative purposes pursuant 
to E.O. 11991.\111\ The NPRM for the 1978 rule stated ``the impacts of 
procedural regulations of this kind are not susceptible to detailed 
analysis beyond that set out in the assessment.'' \112\ Similarly, in 
1986, while CEQ stated in the final rule that there were ``substantial 
legal questions as to whether entities within the Executive Office of 
the President are required to prepare environmental assessments,'' it 
also prepared a special EA.\113\ The special EA issued in 1986 
supported a FONSI, and there was no finding made for the assessment of 
the 1978 final rule. CEQ also prepared a special EA and reached a FONSI 
for the Phase 1 rulemaking.
---------------------------------------------------------------------------

    \111\ National Environmental Policy Act--Regulations: Proposed 
Implementation of Procedural Provisions, 43 FR 25230, 25232 (June 9, 
1978); see E.O. 11991, supra note 26.
    \112\ National Environmental Policy Act--Regulations: Proposed 
Implementation of Procedural Provisions, supra note 111, at 25232.
    \113\ National Environmental Policy Act Regulations; Incomplete 
or Unavailable Information, supra note 29, at 15619.
---------------------------------------------------------------------------

    CEQ continues to take the position that a NEPA analysis is not 
required for establishing or updating NEPA procedures. See Heartwood v. 
U.S. Forest Serv., 230 F.3d 947, 954-55 (7th Cir. 2000) (finding that 
neither NEPA or the CEQ regulations required the Forest Service to 
conduct an EA or an EIS prior to the promulgation of its procedures 
creating a CE). Nevertheless, based on past practice, CEQ has developed 
a special EA and has posted it in the docket. CEQ invites comments on 
the special EA.

D. Executive Order 13132, Federalism

    E.O. 13132 requires agencies to develop an accountable process to 
ensure meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism 
implications.\114\ Policies that have federalism implications include 
regulations that have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.\115\ CEQ does not anticipate that this proposed rule has 
federalism implications because it applies to Federal agencies, not 
States.
---------------------------------------------------------------------------

    \114\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
    \115\ Id.
---------------------------------------------------------------------------

E. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    E.O. 13175 requires agencies to have a process to ensure meaningful 
and timely input by Tribal officials in the development of policies 
that have Tribal implications.\116\ Such policies include regulations 
that have substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal Government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.\117\ CEQ has assessed the impact of this 
proposed rule on Indian Tribal governments and has determined 
preliminarily that the proposed rule does significantly or uniquely 
affect these communities and seeks comment on this preliminary 
determination. CEQ engaged in government-to-government consultation 
with federally recognized Tribes on the Phase 2 rulemaking. As required 
by E.O. 13175, CEQ held a Tribal consultation on this rulemaking on 
November 12, 2021, and will be holding additional consultations during 
the public comment period.
---------------------------------------------------------------------------

    \116\ E.O. 13175, supra note 53.
    \117\ Id.
---------------------------------------------------------------------------

F. Executive Order 12898, Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    E.O. 12898 requires agencies to make achieving environmental 
justice part of their missions by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of their programs, policies, and activities on 
communities of color and low-income communities.\118\ E.O. 14096 
charges agencies to make achieving environmental justice part of its 
mission consistent with statutory authority by identifying, analyzing, 
and addressing disproportionate and adverse human health and 
environmental effects and hazards of Federal activities, including 
those related to climate change and cumulative impacts of environmental 
and other burdens on communities with environmental justice concerns.
---------------------------------------------------------------------------

    \118\ E.O. 12898, supra note 7.
---------------------------------------------------------------------------

    CEQ has analyzed this proposed rule and preliminarily determined 
that it would not cause disproportionate and adverse human health or 
environmental effects on communities with environmental justice 
concerns. This rule would set forth implementing regulations for NEPA; 
it is in the agency implementation of NEPA when conducting reviews of 
proposed agency actions where consideration of environmental justice 
effects typically occurs. CEQ invites comment on this preliminary 
determination.

G. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Agencies must prepare a Statement of Energy Effects for significant 
energy actions under E.O. 13211.\119\ CEQ has preliminarily determined 
that this rulemaking is not a ``significant energy action'' because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
---------------------------------------------------------------------------

    \119\ E.O. 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 
28355 (May 22, 2001).
---------------------------------------------------------------------------

H. Executive Order 12988, Civil Justice Reform

    Under section 3(a) of E.O. 12988, agencies must review their 
proposed regulations to eliminate drafting errors and ambiguities, 
draft them to minimize litigation, and provide a clear legal standard 
for affected conduct.\120\ Section 3(b) provides a list of specific 
issues for review to conduct the reviews required by section 3(a).\121\ 
CEQ has conducted this review and determined that this proposed rule 
complies with the requirements of E.O. 12988.
---------------------------------------------------------------------------

    \120\ E.O. 12988, Civil Justice Reform, 61 FR 4729, 4731 (Feb. 
7, 1996).
    \121\ Id.
---------------------------------------------------------------------------

I. Unfunded Mandate Reform Act

    Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1531, requires Federal agencies to assess the effects of their 
regulatory actions on Tribal, State, and local governments, and the 
private sector to the extent that such regulations incorporate 
requirements specifically set forth in law. Before promulgating a rule 
that may result in the expenditure by a Tribal, State, or local 
government, in the aggregate, or by the private sector of $100 million, 
adjusted annually for inflation, in any 1 year, an agency must prepare 
a written statement that assesses the effects on Tribal, State, and 
local governments and the private sector. 2 U.S.C. 1532. This proposed 
rule would apply to Federal agencies and would not result in 
expenditures of $100 million or more for Tribal, State, and local 
governments, in the aggregate, or the private sector in any 1 year. 
This

[[Page 49966]]

proposed action also would not impose any enforceable duty, contain any 
unfunded mandate, or otherwise have any effect on small governments 
subject to the requirements of 2 U.S.C. 1531-1538.

J. Paperwork Reduction Act

    This proposed rule would not impose any new information collection 
burden that would require additional review or approval by OMB under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Parts 1500, 1501, 1502, 1503, 1504, 
1505, 1506, 1507, and 1508

    Administrative practice and procedure; Environmental impact 
statements; Environmental protection; Natural resources.

Brenda Mallory,
Chair.

    For the reasons discussed in the preamble, the Council on 
Environmental Quality proposes to amend 40 CFR chapter V by revising 
subchapter A to read as follows:

0
1. Revise subchapter A to read as follows:

PART 1500--PURPOSE AND POLICY

Sec.
1500.1 Purpose.
1500.2 Policy.
1500.3 NEPA compliance.
1500.4 Concise and informative environmental documents.
1500.5 Efficient process.
1500.6 Agency authority.

    Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1501--NEPA AND AGENCY PLANNING

Sec.
1501.1 Purpose.
1501.2 Apply NEPA early in the process.
1501.3 Determine the appropriate level of NEPA review.
1501.4 Categorical exclusions.
1501.5 Environmental assessments.
1501.6 Findings of no significant impact.
1501.7 Lead agency.
1501.8 Cooperating agencies.
1501.9 Public and governmental engagement.
1501.10 Deadlines and schedule for the NEPA process.
1501.11 Programmatic environmental documents and tiering.
1501.12 Incorporation by reference into environmental documents.

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1502--ENVIRONMENTAL IMPACT STATEMENT

Sec.
1502.1 Purpose of environmental impact statement.
1502.2 Implementation.
1502.3 Statutory requirements for environmental impact statements.
1502.4 Scoping.
1502.5 Timing.
1502.6 Interdisciplinary preparation.
1502.7 Page limits.
1502.8 Writing.
1502.9 Draft, final, and supplemental statements.
1502.10 Recommended format.
1502.11 Cover.
1502.12 Summary.
1502.13 Purpose and need.
1502.14 Alternatives including the proposed action.
1502.15 Affected environment.
1502.16 Environmental consequences.
1502.17 Summary of scoping information.
1502.18 List of preparers.
1502.19 Appendix.
1502.20 Publication of the environmental impact statement.
1502.21 Incomplete or unavailable information.
1502.22 Cost-benefit analysis.
1502.23 Methodology and scientific accuracy.
1502.24 Environmental review and consultation requirements.

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS

Sec.
1503.1 Inviting comments and requesting information and analyses.
1503.2 Duty to comment.
1503.3 Specificity of comments and information.
1503.4 Response to comments.

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED 
FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY

Sec.
1504.1 Purpose.
1504.2 Early dispute resolution.
1504.3 Criteria and procedure for referrals and response.

PART 1505--NEPA AND AGENCY DECISION MAKING

Sec.
1505.1 [Reserved]
1505.2 Record of decision in cases requiring environmental impact 
statements.
1505.3 Implementing the decision.

    Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1506--OTHER REQUIREMENTS OF NEPA

Sec.
1506.1 Limitations on actions during NEPA process.
1506.2 Elimination of duplication with State, Tribal, and local 
procedures.
1506.3 Adoption.
1506.4 Combining documents.
1506.5 Agency responsibility for environmental documents.
1506.6 [Reserved]
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Filing requirements.
1506.10 Timing of agency action.
1506.11 Emergencies.
1506.12 Innovative approaches to NEPA reviews.
1506.13 Effective date.

    Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1507--AGENCY COMPLIANCE

Sec.
1507.1 Compliance.
1507.2 Agency capability to comply.
1507.3 Agency NEPA procedures.
1507.4 Agency NEPA program information.

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1508--DEFINITIONS

Sec.
1508.1 Definitions.
1508.2 [Reserved]

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; and E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, 
as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123.

PART 1500--PURPOSE AND POLICY


Sec.  1500.1  Purpose.

    (a) The National Environmental Policy Act (NEPA) is the basic 
national charter for protection of the environment. It establishes 
policy, sets goals (section 101), and provides direction (section 102) 
for carrying out the policy.

[[Page 49967]]

    (1) Section 101(a) of NEPA establishes the national environmental 
policy of the Federal Government to use all practicable means and 
measures to foster and promote the general welfare, create and maintain 
conditions under which people and nature can exist in productive 
harmony, and fulfill the social, economic, and other requirements of 
present and future generations. Section 101(b) of NEPA establishes the 
continuing responsibility of the Federal Government to use all 
practicable means, consistent with other essential considerations of 
national policy, to help each generation serve as a trustee of the 
environment for succeeding generations; assure for all people safe, 
healthful, productive, and aesthetically and culturally pleasing 
surroundings; attain the widest range of beneficial uses of the 
environment without degradation, risk to health or safety, or other 
undesirable and unintended consequences; preserve important historic, 
cultural, and natural aspects of our national heritage, and maintain, 
wherever possible, an environment which supports diversity and variety 
of individual choice; achieve a balance between population and resource 
use which will permit high standards of living and a wide sharing of 
life's amenities; and enhance the quality of renewable resources and 
approach the maximum attainable recycling of depletable resources.
    (2) Section 102(2) of NEPA establishes procedural requirements to 
carry out the policy and responsibilities established in section 101 of 
NEPA and contains ``action-forcing'' procedural provisions to ensure 
Federal agencies implement the letter and spirit of the Act. The 
purpose of the regulations in this subchapter is to set forth what 
Federal agencies must and should do to comply with the procedures and 
achieve the goals of the Act. The President, the Federal agencies, and 
the courts share responsibility for enforcing the Act so as to achieve 
the policy goals of section 101.
    (b) Federal agency NEPA procedures must ensure that agencies 
identify, consider, and disclose to the public relevant environmental 
information early in the process before decisions are made and before 
actions are taken. The information should be of high quality, science-
based, and accessible. Accurate scientific analysis, expert agency 
comments, and public scrutiny are essential to implementing NEPA. Most 
important, environmental documents must concentrate on the issues that 
are truly relevant to the action in question, rather than amassing 
needless detail. The regulations in this subchapter also are intended 
to ensure that Federal agencies conduct environmental reviews in a 
coordinated, consistent, predictable, and timely manner, and to reduce 
unnecessary burdens and delays. Finally, the regulations in this 
subchapter promote concurrent environmental reviews to ensure timely 
and efficient decision making.
    (c) Ultimately, of course, it is not better documents but better 
decisions that count. NEPA's purpose is not to generate paperwork--even 
excellent paperwork--but to foster excellent action. The NEPA process 
is intended to help public officials make decisions that are based on 
an understanding of environmental consequences and take actions that 
protect, restore, and enhance the environment. The regulations in this 
subchapter provide the direction to achieve this purpose.


Sec.  1500.2  Policy.

    Federal agencies shall to the fullest extent possible:
    (a) Interpret and administer the policies, regulations, and public 
laws of the United States in accordance with the policies set forth in 
the Act and in these regulations.
    (b) Implement procedures to make the NEPA process more useful to 
decision makers and the public; to reduce paperwork and the 
accumulation of extraneous background data; and to emphasize important 
environmental issues and alternatives. Environmental documents shall be 
concise, clear, and supported by evidence that agencies have conducted 
the necessary environmental analyses.
    (c) Integrate the requirements of NEPA with other planning and 
environmental review procedures required by law or by agency practice 
so that all such procedures run concurrently rather than consecutively.
    (d) Encourage and facilitate public engagement in decisions that 
affect the quality of the human environment, including meaningful 
engagement with communities with environmental justice concerns, which 
often include communities of color, low-income communities, indigenous 
communities, and Tribal communities.
    (e) Use the NEPA process to identify and assess the reasonable 
alternatives to proposed actions that will avoid or minimize adverse 
effects of these actions upon the quality of the human environment, 
such as alternatives that will reduce climate change-related effects or 
address adverse health and environmental effects that 
disproportionately affect communities with environmental justice 
concerns.
    (f) Use all practicable means, consistent with the requirements of 
the Act and other essential considerations of national policy, to 
restore and enhance the quality of the human environment and avoid or 
minimize any possible adverse effects of their actions upon the quality 
of the human environment.


Sec.  1500.3  NEPA compliance.

    (a) Mandate. This subchapter is applicable to and binding on all 
Federal agencies for implementing the procedural provisions of the 
National Environmental Policy Act of 1969, as amended (Pub. L. 91-190, 
42 U.S.C. 4321 et seq.) (NEPA or the Act). The regulations in this 
subchapter are issued pursuant to NEPA; the Environmental Quality 
Improvement Act of 1970, as amended (Pub. L. 91-224, 42 U.S.C. 4371 et 
seq.); and Executive Order 11514, Protection and Enhancement of 
Environmental Quality (March 5, 1970), as amended by Executive Order 
11991, Relating to the Protection and Enhancement of Environmental 
Quality (May 24, 1977). The regulations in this subchapter apply to the 
whole of section 102(2) of NEPA. The provisions of the Act and the 
regulations in this subchapter must be read together as a whole to 
comply with the Act.
    (b) Review of NEPA compliance. It is the Council's intention that 
judicial review of agency compliance with the regulations in this 
subchapter not occur before an agency has issued the record of decision 
or taken other final agency action, except with respect to claims 
brought by project sponsors related to deadlines under section 
107(g)(3) of NEPA. It is also the Council's intention that minor, non-
substantive errors that have no effect on agency decision making shall 
be considered harmless and shall not invalidate an agency action.
    (c) Severability. The sections of this subchapter are separate and 
severable from one another. If any section or portion therein is stayed 
or determined to be invalid, or the applicability of any section to any 
person or entity is held invalid, it is the Council's intention that 
the validity of the remainder of those parts shall not be affected, 
with the remaining sections to continue in effect.


Sec.  1500.4  Concise and informative environmental documents.

    Agencies shall prepare analytical, concise, and informative 
environmental documents by:
    (a) Meeting appropriate page limits (Sec. Sec.  1501.5(g) and 
1502.7 of this subchapter).

[[Page 49968]]

    (b) Discussing only briefly issues other than important ones (e.g., 
Sec.  1502.2(b) of this subchapter).
    (c) Writing environmental documents in plain language (e.g., Sec.  
1502.8 of this subchapter).
    (d) Following a clear format for environmental impact statements 
(Sec.  1502.10 of this subchapter).
    (e) Emphasizing the portions of the environmental document that are 
most useful to decision makers and the public (e.g., Sec. Sec.  
1502.14, 1502.15, and 1502.16 of this subchapter) and reducing emphasis 
on background material (e.g., Sec.  1502.1 of this subchapter).
    (f) Using the scoping process to identify important environmental 
issues deserving of study and to deemphasize unimportant issues, 
narrowing the scope of the environmental impact statement process (or, 
where an agency elects to do so, the environmental assessment process) 
accordingly (Sec. Sec.  1501.9 and 1502.4 of this subchapter).
    (g) Summarizing the environmental impact statement (Sec.  1502.12 
of this subchapter).
    (h) Using programmatic environmental documents and tiering from 
documents of broad scope to those of narrower scope, to eliminate 
repetitive discussions of the same issues (Sec.  1501.11 of this 
subchapter).
    (i) Incorporating by reference (Sec.  1501.12 of this subchapter).
    (j) Integrating NEPA requirements with other environmental review 
and consultation requirements (Sec.  1502.24 of this subchapter).
    (k) Requiring that comments be as specific as possible (Sec.  
1503.3 of this subchapter).
    (l) Attaching and publishing only changes to the draft 
environmental impact statement, rather than rewriting and publishing 
the entire statement, when changes are minor (Sec.  1503.4(c) of this 
subchapter).
    (m) Eliminating duplication with State, Tribal, and local 
procedures, by providing for joint preparation of environmental 
documents where practicable (Sec.  1506.2 of this subchapter), and with 
other Federal procedures, by providing that an agency may adopt 
appropriate environmental documents prepared by another Federal agency 
(Sec.  1506.3 of this subchapter).
    (n) Combining environmental documents with other documents (Sec.  
1506.4 of this subchapter).


Sec.  1500.5  Efficient process.

    Agencies shall improve efficiency of their NEPA processes by:
    (a) Using categorical exclusions to define categories of actions 
that normally do not have a significant effect on the human environment 
(Sec.  1501.4 of this subchapter) and therefore do not require 
preparation of an environmental assessment or environmental impact 
statement.
    (b) Using a finding of no significant impact when an action not 
otherwise excluded will not have a significant effect on the human 
environment (Sec.  1501.6 of this subchapter) and therefore does not 
require preparation of an environmental impact statement.
    (c) Integrating the NEPA process into early planning (Sec.  1501.2 
of this subchapter).
    (d) Engaging in interagency cooperation before or during the 
preparation of an environmental assessment or environmental impact 
statement, rather than waiting to submit comments on a completed 
document (Sec. Sec.  1501.7 and 1501.8 of this subchapter).
    (e) Ensuring the swift and fair resolution of lead agency disputes 
(Sec.  1501.7 of this subchapter).
    (f) Using the scoping process for early identification of the 
important issues that require detailed analysis (Sec.  1502.4 of this 
subchapter).
    (g) Meeting appropriate deadlines for the environmental assessment 
and environmental impact statement processes (Sec.  1501.10 of this 
subchapter).
    (h) Preparing environmental documents early in the process (Sec.  
1502.5 and Sec.  1501.5(d) of this subchapter).
    (i) Integrating NEPA requirements with other environmental review 
and consultation requirements (Sec.  1502.24 of this subchapter).
    (j) Eliminating duplication with State, Tribal, and local 
procedures by providing for joint preparation of environmental 
documents where practicable (Sec.  1506.2 of this subchapter) and with 
other Federal procedures by providing that agencies may jointly prepare 
or adopt appropriate environmental documents prepared by another agency 
(Sec.  1506.3 of this subchapter).
    (k) Combining environmental documents with other documents (Sec.  
1506.4 of this subchapter).
    (l) Using accelerated procedures for proposals for legislation 
(Sec.  1506.8 of this subchapter).


Sec.  1500.6  Agency authority.

    Each agency shall interpret the provisions of the Act as a 
supplement to its existing authority and as a mandate to view policies 
and missions in the light of the Act's national environmental 
objectives, to the extent consistent with its existing authority. 
Agencies shall review their policies, procedures, and regulations 
accordingly and revise them as necessary to ensure full compliance with 
the purposes and provisions of the Act and the regulations in this 
subchapter. The phrase ``to the fullest extent possible'' in section 
102 of NEPA means that each agency of the Federal Government shall 
comply with that section unless an agency activity, decision, or action 
is exempted from NEPA by law or compliance with NEPA is impossible.

PART 1501--NEPA AND AGENCY PLANNING


Sec.  1501.1  Purpose.

    The purposes of this part include:
    (a) Integrating the NEPA process into agency planning at an early 
stage to facilitate appropriate consideration of NEPA's policies, 
promote an efficient process, and reduce delay.
    (b) Providing for early engagement in the environmental review 
process with other agencies, State, Tribal, and local governments, and 
affected or interested persons, entities, and communities before a 
decision is made.
    (c) Providing for the swift and fair resolution of interagency 
disputes.
    (d) Identifying at an early stage the important environmental 
issues deserving of study, and deemphasizing unimportant issues, 
narrowing the scope of the environmental review and enhancing 
efficiency accordingly.
    (e) Promoting accountability by establishing appropriate deadlines 
and requiring schedules.


Sec.  1501.2  Apply NEPA early in the process.

    (a) Agencies should integrate the NEPA process with other planning 
and authorization processes at the earliest reasonable time to ensure 
that agencies consider environmental impacts in their planning and 
decisions, to avoid delays later in the process, and to head off 
potential conflicts.
    (b) Each agency shall:
    (1) Comply with the mandate of section 102(2)(A) of NEPA to utilize 
a systematic, interdisciplinary approach, which will ensure the 
integrated use of the natural and social sciences and the environmental 
design arts in planning and in decision making that may have an impact 
on the human environment, as specified by Sec.  1507.2(a) of this 
subchapter.
    (2) Identify environmental effects and values in adequate detail so 
the decision maker can appropriately consider such effects and values 
alongside economic and technical analyses. Whenever practicable, 
agencies shall review and publish environmental documents and 
appropriate analyses at the same time as other planning documents.

[[Page 49969]]

    (3) Study, develop, and describe appropriate alternatives to 
recommended courses of action in any proposal that involves unresolved 
conflicts concerning alternative uses of available resources, as 
provided by section 102(2)(H) of NEPA.
    (4) Provide for actions subject to NEPA that are planned by 
applicants or other non-Federal entities before Federal involvement so 
that:
    (i) Policies or designated staff are available to advise potential 
applicants of studies or other information foreseeably required for 
later Federal action.
    (ii) The Federal agency consults early with appropriate State, 
Tribal, and local governments and with interested individuals and 
organizations when their involvement is reasonably foreseeable.
    (iii) The Federal agency commences its NEPA process at the earliest 
reasonable time (Sec. Sec.  1501.5(d) and 1502.5(b) of this 
subchapter).


Sec.  1501.3  Determine the appropriate level of NEPA review.

    (a) Applicability. As a threshold determination, an agency shall 
assess whether NEPA applies to the proposed activity or decision. In 
assessing whether NEPA applies, Federal agencies should determine:
    (1) Whether the proposed activity or decision is exempted from NEPA 
by law;
    (2) Whether compliance with NEPA would clearly and fundamentally 
conflict with the requirements of another provision of law;
    (3) Whether statutory provisions applicable to the agency's 
proposed activity or decision make compliance with NEPA impossible; and
    (4) Whether the proposed activity or decision is a major Federal 
action, including whether:
    (i) The proposed activity or decision is a final agency action 
within the meaning of such term in chapter 5 of title 5, United States 
Code (Sec.  1508.1(u)(2)(viii)); or
    (ii) The proposed activity or decision is a non-discretionary 
action with respect to which such agency does not have authority to 
take environmental factors into consideration in determining whether to 
take the proposed action (Sec.  1508.1(u)(2)(vi)).
    (b) Scope of action and analysis. If the agency determines that 
NEPA applies, the agency shall consider the scope of the proposed 
action and its potential effects to inform the agency's determination 
of the appropriate level of NEPA review. The agency shall evaluate, in 
a single review, proposals or parts of proposals that are related 
closely enough to be, in effect, a single course of action. The agency 
also shall consider whether there are connected actions, which are 
closely related Federal activities or decisions that should be 
considered in the same NEPA review that:
    (1) Automatically trigger other actions that may require NEPA 
review;
    (2) Cannot or will not proceed unless other actions are taken 
previously or simultaneously; or
    (3) Are interdependent parts of a larger action and depend on the 
larger action for their justification.
    (c) Levels of NEPA review. In assessing the appropriate level of 
NEPA review, agencies may make use of any reliable data source and are 
not required to undertake new scientific or technical research unless 
it is essential to a reasoned choice among alternatives, and the 
overall costs and timeframe of obtaining it are not unreasonable. 
Agencies should determine whether the proposed action:
    (1) Normally does not have significant effects and is categorically 
excluded (Sec.  1501.4);
    (2) Is not likely to have significant effects or the significance 
of the effects is unknown and is therefore appropriate for an 
environmental assessment (Sec.  1501.5); or
    (3) Is likely to have significant effects and is therefore 
appropriate for an environmental impact statement (part 1502 of this 
subchapter).
    (d) Significance determination--context and intensity. In 
considering whether the effects of the proposed action are significant, 
agencies shall examine both the context of an action and the intensity 
of the effects.
    (1) Agencies shall analyze the significance of an action in several 
contexts. Agencies should consider the characteristics of the relevant 
geographic area, such as proximity to unique or sensitive resources or 
vulnerable communities. Depending on the scope of the action, agencies 
should consider the potential global, national, regional, and local 
contexts as well as the duration, including short-and long-term 
effects.
    (2) Agencies shall analyze the intensity of effects considering the 
following factors, as applicable and in relationship to one another:
    (i) Effects may be beneficial or adverse. However, only actions 
with significant adverse effects require an environmental impact 
statement. A significant adverse effect may exist even if the agency 
considers that on balance the effects of the action will be beneficial. 
Agencies should consider the duration of effects; for instance, a 
proposed action may have short-term adverse effects but long-term 
beneficial effects.
    (ii) The degree to which the proposed action may adversely affect 
public health and safety.
    (iii) The degree to which the proposed action may adversely affect 
unique characteristics of the geographic area such as historic or 
cultural resources, park lands, Tribal sacred sites, prime farmlands, 
wetlands, wild and scenic rivers, or ecologically critical areas.
    (iv) Whether the action may violate relevant Federal, State, 
Tribal, or local laws or other requirements or be inconsistent with 
Federal, State, Tribal, or local policies designed for the protection 
of the environment.
    (v) The degree to which the potential effects on the human 
environment are highly uncertain.
    (vi) The degree to which the action may relate to other actions 
with adverse environmental effects, including actions that are 
individually insignificant but significant in the aggregate. 
Significance cannot be avoided by terming an action temporary that is 
not temporary in fact or by segmenting it into small component parts.
    (vii) The degree to which the action may adversely affect resources 
listed or eligible for listing in the National Register of Historic 
Places.
    (viii) The degree to which the action may adversely affect an 
endangered or threatened species or its habitat, including habitat that 
has been determined to be critical under the Endangered Species Act of 
1973.
    (ix) The degree to which the action may have disproportionate and 
adverse effects on communities with environmental justice concerns.
    (x) The degree to which the action may adversely affect rights of 
Tribal Nations that have been reserved through treaties, statutes, or 
Executive Orders.


Sec.  1501.4  Categorical exclusions.

    (a) For efficiency and consistent with Sec.  1507.3(c)(8)(ii) of 
this subchapter, agencies shall establish categorical exclusions for 
categories of actions that normally do not have a significant effect on 
the human environment, individually or in the aggregate, and therefore 
do not require preparation of an environmental assessment or 
environmental impact statement unless extraordinary circumstances exist 
that make application of the categorical exclusion inappropriate, 
consistent with paragraph (b) of this section. Agencies may establish 
categorical exclusions individually or jointly with other agencies.

[[Page 49970]]

    (b) If an agency determines that a categorical exclusion identified 
in its agency NEPA procedures covers a proposed action, the agency 
shall evaluate the action for extraordinary circumstances in which a 
normally excluded action may have a significant effect.
    (1) If an extraordinary circumstance exists, the agency 
nevertheless may apply the categorical exclusion if the agency conducts 
an analysis and determines that the proposed action does not in fact 
have the potential to result in significant effects notwithstanding the 
extraordinary circumstance or the agency modifies the action to address 
the extraordinary circumstance. In such cases, the agency shall 
document such determination and should publish it on the agency's 
website or otherwise make it publicly available.
    (2) If the agency cannot categorically exclude the proposed action, 
the agency shall prepare an environmental assessment or environmental 
impact statement, as appropriate.
    (c) In addition to the process for establishing categorical 
exclusions under Sec.  1507.3(c)(8) of this subchapter, agencies may 
establish categorical exclusions through a land use plan, a decision 
document supported by a programmatic environmental impact statement or 
programmatic environmental assessment, or other equivalent planning or 
programmatic decision, so long as the agency:
    (1) Provides the Council an opportunity to review and comment prior 
to public comment;
    (2) Provides notification and an opportunity for public comment;
    (3) Substantiates its determination that the category of actions 
normally does not have significant effects, individually or in the 
aggregate;
    (4) Identifies extraordinary circumstances;
    (5) Establishes a process for determining that a categorical 
exclusion applies to a specific action or actions in the absence of 
extraordinary circumstances, or, where extraordinary circumstances are 
present, for determining the agency may apply the categorical exclusion 
consistent with (b)(1) of this section; and
    (6) Publishes a list of all categorical exclusions established 
through these mechanisms on its website.
    (d) Categorical exclusions established consistent with paragraph 
(c) of this section or Sec.  1507.3(c)(8) may:
    (1) Cover specific geographic areas or areas that share common 
characteristics, e.g., habitat type;
    (2) Have a limited duration;
    (3) Include mitigation measures that, in the absence of 
extraordinary circumstances, will ensure that any environmental effects 
are not significant, so long as a process is established for monitoring 
and enforcing any required mitigation measures, including through the 
suspension or revocation of the relevant agency action; or
    (4) Provide criteria that would cause the categorical exclusion to 
expire because the agency's determination that the category of action 
does not have significant effects, individually or in the aggregate, is 
no longer applicable, including, as appropriate, because:
    (i) The number of individual actions covered by the categorical 
exclusion exceeds a specific threshold;
    (ii) Individual actions covered by the categorical exclusion are 
too close to one another in proximity or time; or
    (iii) Environmental conditions or information upon which the 
agency's determination was based have changed.
    (e) An agency may apply a categorical exclusion listed in another 
agency's NEPA procedures to a proposed action or a category of proposed 
actions consistent with this paragraph. The agency shall:
    (1) Identify the categorical exclusion listed in another agency's 
NEPA procedures that covers its proposed action or a category of 
proposed actions;
    (2) Consult with the agency that established the categorical 
exclusion to ensure that the proposed application of the categorical 
exclusion is appropriate;
    (3) Evaluate the proposed action or category of proposed actions 
for extraordinary circumstances, consistent with paragraph (b) of this 
section;
    (4) Provide public notice of the categorical exclusion that the 
agency plans to use for the proposed action or category of proposed 
actions; and
    (5) Publish the documentation of the application of the categorical 
exclusion.


Sec.  1501.5  Environmental assessments.

    (a) An agency shall prepare an environmental assessment for a 
proposed action that is not likely to have significant effects or when 
the significance of the effects is unknown unless the agency finds that 
a categorical exclusion (Sec.  1501.4) is applicable or has decided to 
prepare an environmental impact statement.
    (b) An agency may prepare an environmental assessment on any action 
to assist agency planning and decision making.
    (c) An environmental assessment shall:
    (1) Briefly provide sufficient evidence and analysis for 
determining whether to prepare an environmental impact statement or a 
finding of no significant impact;
    (2) Briefly discuss the:
    (i) Purpose and need for the proposed agency action;
    (ii) Alternatives as required by section 102(2)(H) of NEPA; and
    (iii) Environmental effects of the proposed action and 
alternatives;
    (3) List the Federal agencies; State, Tribal, and local governments 
and agencies; or persons consulted; and
    (4) Provide a unique identification number for tracking purposes, 
which the agency shall reference on all associated environmental review 
documents prepared for the proposed action.
    (d) For applications to the agency requiring an environmental 
assessment, the agency shall commence the environmental assessment as 
soon as practicable after receiving the application.
    (e) If an agency publishes a draft environmental assessment, the 
agency shall invite public comment and consider those comments in 
preparing the final environmental assessment.
    (f) Agencies shall involve the public, State, Tribal, and local 
governments, relevant agencies, and any applicants, to the extent 
practicable in preparing environmental assessments (see Sec.  1501.9).
    (g) The text of an environmental assessment shall not exceed 75 
pages, not including any citations or appendices.
    (h) Agencies may supplement environmental assessments if a major 
Federal action remains to occur, and the agency determines 
supplementation is appropriate. Agencies may reevaluate an 
environmental assessment or otherwise document a finding that changes 
to the proposed action or new circumstances or information relevant to 
environmental concerns are not substantial, or the underlying 
assumptions of the analysis remain valid.
    (i) Agencies generally should apply the provisions of Sec. Sec.  
1502.21 and 1502.23 to environmental assessments.
    (j) As appropriate to improve efficiency and effectiveness of 
environmental assessments, agencies may apply the other provisions of 
part 1502 and 1503 of this subchapter, including Sec. Sec.  1502.4, 
1502.22, 1502.24, and 1503.4, to environmental assessments.


Sec.  1501.6  Findings of no significant impact.

    (a) An agency shall prepare a finding of no significant impact if 
the agency determines, based on the environmental

[[Page 49971]]

assessment, not to prepare an environmental impact statement because 
the proposed action will not have significant effects, or a mitigated 
finding of no significant impact because the proposed action will not 
have significant effects due to mitigation.
    (1) The agency shall make the finding of no significant impact 
available to the affected public as specified in Sec.  1501.9(d)(2) of 
this subchapter.
    (2) In the following circumstances, the agency shall make the 
finding of no significant impact available for public review for 30 
days before the agency makes its final determination whether to prepare 
an environmental impact statement and before the action may begin:
    (i) The proposed action is or is closely similar to one that 
normally requires the preparation of an environmental impact statement 
under the procedures adopted by the agency pursuant to Sec.  1507.3 of 
this subchapter; or
    (ii) The nature of the proposed action is one without precedent.
    (b) The finding of no significant impact shall include the 
environmental assessment or incorporate it by reference and shall note 
any other environmental documents related to it (Sec.  1502.4(d)(3)). 
If the environmental assessment is included, the finding need not 
repeat any of the discussion in the assessment but may incorporate it 
by reference.
    (c) The finding of no significant impact shall state the authority 
for any mitigation that the agency has adopted and any applicable 
monitoring or enforcement provisions. If the agency finds no 
significant effects based on mitigation, the mitigated finding of no 
significant impact shall state the enforceable mitigation requirements 
or commitments that will be undertaken and the authority to enforce 
them, such as permit conditions, agreements, or other measures. In 
addition, the agency shall prepare a monitoring and compliance plan for 
any mitigation the agency relies on as a component of the proposed 
action consistent with Sec.  1505.3(c) of this subchapter.


Sec.  1501.7  Lead agency.

    (a) A lead agency shall supervise the preparation of an 
environmental impact statement or environmental assessment if more than 
one Federal agency either:
    (1) Proposes or is involved in the same action; or
    (2) Is involved in a group of actions directly related to each 
other because of their functional interdependence or geographical 
proximity.
    (b) Federal, State, Tribal, or local agencies may serve as a joint 
lead agency to prepare an environmental impact statement or 
environmental assessment (Sec.  1506.2 of this subchapter). A joint 
lead agency shall jointly fulfill the role of a lead agency.
    (c) If an action falls within the provisions of paragraph (a) of 
this section, the participating Federal agencies shall determine, by 
letter or memorandum, which agencies will be lead or joint lead 
agencies, and the lead agency shall determine which agencies will be 
cooperating agencies. The agencies shall resolve the lead agency 
question so as not to cause delay. If there is disagreement among the 
agencies, the following factors (which are listed in order of 
descending importance) shall determine lead agency designation:
    (1) Magnitude of agency's involvement;
    (2) Project approval or disapproval authority;
    (3) Expertise concerning the action's environmental effects;
    (4) Duration of agency's involvement; and
    (5) Sequence of agency's involvement.
    (d) Any Federal, State, Tribal, or local agency or individual 
substantially affected by the absence of a lead agency designation, may 
make a written request to the senior agency officials of the potential 
lead agencies that a lead agency be designated. An agency that receives 
a request under this paragraph shall transmit such request to each 
participating Federal agency and to the Council.
    (e) If Federal agencies are unable to agree on which agency will be 
the lead agency or if the procedure described in paragraph (c) of this 
section has not resulted in a lead agency designation within 45 days of 
the written request to the senior agency officials, any of the agencies 
or individuals concerned may file a request with the Council asking it 
to determine which Federal agency shall be the lead agency. The Council 
shall transmit a copy of the request to each potential lead agency. The 
request shall consist of:
    (1) A precise description of the nature and extent of the proposed 
action; and
    (2) A detailed statement of why each potential lead agency should 
or should not be the lead agency under the criteria specified in 
paragraph (c) of this section.
    (f) Any potential lead agency may file a response no later than 20 
days after a request is filed with the Council. As soon as possible, 
but not later than 40 days after receiving the request and all 
responses to it, the Council shall designate which Federal agency will 
be the lead agency and which other Federal agencies will be cooperating 
agencies.
    (g) To the extent practicable, if a proposal will require action by 
more than one Federal agency and the lead agency determines that it 
requires preparation of an environmental impact statement, the lead and 
cooperating agencies shall evaluate the proposal in a single 
environmental impact statement and shall issue, except where 
inappropriate or inefficient, a joint record of decision. To the extent 
practicable, if a proposal will require action by more than one Federal 
agency and the lead agency determines that it requires preparation of 
an environmental assessment, the lead and cooperating agencies shall 
evaluate the proposal in a single environmental assessment and issue a 
joint finding of no significant impact or jointly determine to prepare 
an environmental impact statement.
    (h) With respect to cooperating agencies, the lead agency shall:
    (1) Request the participation of each cooperating agency in the 
NEPA process at the earliest practicable time;
    (2) Consider any analysis or proposal created by a cooperating 
agency and, to the maximum extent practicable, use the environmental 
analysis and information provided by cooperating agencies;
    (3) Meet with a cooperating agency at the latter's request; and
    (4) Determine the purpose and need, and alternatives in 
consultation with any cooperating agency.


Sec.  1501.8  Cooperating agencies.

    (a) The purpose of this section is to emphasize agency cooperation 
early in the NEPA process. Upon request of the lead agency, any Federal 
agency with jurisdiction by law shall be a cooperating agency. In 
addition, upon request of the lead agency, any other Federal agency 
with special expertise with respect to any environmental issue may be a 
cooperating agency. A State, Tribal, or local agency of similar 
qualifications may become a cooperating agency by agreement with the 
lead agency. Relevant special expertise may include Indigenous 
Knowledge. An agency may request that the lead agency designate it a 
cooperating agency, and a Federal agency may appeal a denial of its 
request to the Council, in accordance with Sec.  1501.7(e).
    (b) Each cooperating agency shall:
    (1) Participate in the NEPA process at the earliest practicable 
time.
    (2) Participate in the scoping process (described in Sec.  1502.4).
    (3) On request of the lead agency, assume responsibility for 
developing

[[Page 49972]]

information and preparing environmental analyses, including portions of 
the environmental impact statement or environmental assessment 
concerning which the cooperating agency has special expertise.
    (4) On request of the lead agency, make available staff support to 
enhance the lead agency's interdisciplinary capability.
    (5) Normally use its own funds. To the extent available funds 
permit, the lead agency shall fund those major activities or analyses 
it requests from cooperating agencies. Potential lead agencies shall 
include such funding requirements in their budget requests.
    (6) Consult with the lead agency in developing the schedule (Sec.  
1501.10), meet the schedule, and elevate, as soon as practicable, to 
the senior agency official of the lead agency any issues relating to 
purpose and need, alternatives, or other issues that may affect any 
agencies' ability to meet the schedule.
    (7) Meet the lead agency's schedule for providing comments.
    (8) To the maximum extent practicable, jointly issue environmental 
documents with the lead agency.
    (c) In response to a lead agency's request for assistance in 
preparing the environmental documents (described in paragraph (b)(3), 
(4), or (5) of this section), a cooperating agency may reply that other 
program commitments preclude any involvement or the degree of 
involvement requested in the action that is the subject of the 
environmental impact statement or environmental assessment. The 
cooperating agency shall submit a copy of this reply to the Council and 
the senior agency official of the lead agency.


Sec.  1501.9  Public and governmental engagement.

    (a) Purpose. Agencies conduct public engagement to inform the 
public of an agency's proposed action, allow for meaningful engagement 
during the NEPA process, and ensure decision makers are informed by the 
views of the public. Agencies conduct governmental engagement to 
identify the potentially affected Federal, State, Tribal, and local 
governments, invite them to serve as cooperating agencies, as 
appropriate, and ensure that participating agencies have opportunities 
to engage in the environmental review process, as appropriate.
    (b) Responsibility. Agencies shall determine the appropriate 
methods of public and governmental engagement. For environmental impact 
statements, in addition to the requirements of this section, agencies 
also shall comply with the requirements for scoping set forth in Sec.  
1502.4 of this subchapter.
    (c) Outreach. The lead agency should:
    (1) Invite the participation of likely affected Federal, State, 
Tribal, and local agencies and governments, as early as practicable, 
including, as appropriate, as cooperating agencies under Sec.  1501.8 
of this subchapter;
    (2) Conduct early engagement with likely affected or interested 
members of the public (including those who might not be in accord with 
the action), unless there is a limited exception under Sec.  
1507.3(d)(3) of this subchapter; and
    (3) Consider what methods of outreach and notification are 
necessary and appropriate based on the likely affected entities; the 
scope, scale, and complexity of the proposed action and alternatives; 
the degree of public interest; and other relevant factors. When 
selecting appropriate methods for providing public notification, 
agencies shall consider the ability of affected persons and agencies to 
access electronic media and the primary language of affected persons.
    (d) Notification. Agencies shall:
    (1) Publish notification of proposed actions they are analyzing 
through an environmental impact statement.
    (2) Provide public notification of NEPA-related hearings, public 
meetings, and other opportunities for public engagement, and, as 
appropriate, the availability of environmental documents to inform 
those persons and agencies who may be interested or affected by their 
proposed actions.
    (i) In all cases, the agency shall notify those who have requested 
notification on an individual action.
    (ii) In the case of an action with effects of national concern, 
notice shall include publication in the Federal Register. An agency 
also may notify entities and persons who have requested regular 
notification.
    (iii) In the case of an action with effects primarily of local 
concern, the notification may include distribution to or through:
    (A) State, Tribal, and local governments and agencies that may be 
interested or affected by the proposed action.
    (B) Following the affected State or Tribe's public notification 
procedures for comparable actions.
    (C) Publication in local newspapers having general circulation.
    (D) Other local media.
    (E) Potentially interested community organizations including small 
business associations.
    (F) Publication in newsletters that may be expected to reach 
potentially interested persons.
    (G) Direct mailing to owners and occupants of nearby or affected 
property.
    (H) Posting of notification on- and off-site in the area where the 
action is to be located.
    (I) Electronic media (e.g., a project or agency website, dashboard, 
email list, or social media). Agencies should establish email 
notification lists or similar methods for the public to easily request 
electronic notifications for a proposed action.
    (3) Make environmental impact statements, the comments received, 
and any underlying documents available to the public pursuant to the 
provisions of the Freedom of Information Act, as amended (5 U.S.C. 
552).
    (e) Public meetings and hearings. Agencies may hold or sponsor 
public hearings, public meetings, or other opportunities for public 
engagement whenever appropriate or in accordance with statutory or 
regulatory requirements or applicable agency NEPA procedures. Agencies 
may conduct public hearings and public meetings by means of electronic 
communication except where another format is required by law. When 
determining the format for a public hearing or public meeting, agencies 
should consider the needs of affected communities. When accepting 
comments for electronic or virtual public hearings or meetings, 
agencies shall allow the public to submit comments electronically, by 
regular mail, or by other appropriate methods.
    (f) Agency procedures. Agencies shall make diligent efforts to 
engage the public in preparing and implementing their NEPA procedures 
(Sec.  1507.3 of this subchapter).


Sec.  1501.10  Deadlines and schedule for the NEPA process.

    (a) To ensure that agencies conduct sound NEPA reviews as 
efficiently and expeditiously as practicable, Federal agencies shall 
set deadlines and schedules appropriate to individual actions or types 
of actions consistent with this section and the time intervals required 
by Sec.  1506.10 of this subchapter. Where applicable, the lead agency 
shall establish the schedule and make any necessary updates to the 
schedule in consultation with and seek the concurrence of joint lead, 
cooperating, and participating agencies, and in consultation with 
project sponsors or applicants.
    (b) To ensure timely decision making, agencies shall complete:
    (1) Environmental assessments within 1 year, unless the lead agency 
extends the deadline in writing and in

[[Page 49973]]

consultation with any applicant or project sponsor, and establishes a 
new deadline that provides only so much additional time as is necessary 
to complete the environmental assessment.
    (2) Environmental impact statements within 2 years, unless the lead 
agency extends the deadline in writing and in consultation with any 
applicant or project sponsor and establishes a new deadline that 
provides only so much additional time as is necessary to complete the 
environmental impact statement.
    (3) The deadlines in paragraphs (b)(1) and (b)(2) of this section 
are measured from the sooner of, as applicable:
    (i) the date on which the agency determines that NEPA requires an 
environmental impact statement or environmental assessment for the 
proposed action;
    (ii) the date on which the agency notifies an applicant that the 
application to establish a right-of-way for the proposed action is 
complete; and
    (iii) the date on which the agency issues a notice of intent for 
the proposed action.
    (4) The lead agency shall annually submit the report to Congress on 
missed deadlines for environmental assessments and environmental impact 
statements required by section 107(h) of NEPA.
    (c) To facilitate predictability, the lead agency shall develop a 
schedule for completion of environmental impact statements and 
environmental assessments as well as any authorizations required to 
carry out the action. The lead agency shall set milestones for all 
environmental reviews, permits, and authorizations required for 
implementation of the action, in consultation with any project sponsor 
or applicant and in consultation with and seek the concurrence of all 
joint lead, cooperating, and participating agencies, as soon as 
practicable. Schedules may vary depending on the type of action and in 
consideration of other factors in paragraph (d). The lead agency should 
develop a schedule that is based on its expertise reviewing similar 
types of actions under NEPA. If the lead agency or any participating 
agency anticipates that a milestone, including those for a review, 
permit, or authorization, will not be completed, it shall notify the 
agency responsible for the milestone or issuance of the review, permit, 
or authorization and the lead agency, as applicable, and request that 
they take appropriate measures to comply with the schedule. As soon as 
practicable, the lead and any other agency affected by a potentially 
missed milestone shall elevate any unresolved disputes contributing to 
the missed milestone to the appropriate officials of the agencies 
responsible for the missed milestone, to ensure timely resolution 
within the deadlines for the individual action.
    (d) The lead agency may consider the following factors in 
determining the schedule and deadlines:
    (1) Potential for environmental harm.
    (2) Size of the proposed action.
    (3) State of the art of analytic techniques.
    (4) Degree of public need for the proposed action, including the 
consequences of delay.
    (5) Number of persons and agencies affected.
    (6) Availability of relevant information.
    (7) Degree to which a substantial dispute exists as to the size, 
location, nature, or consequences of the proposed action and its 
effects.
    (8) Time limits imposed on the agency by law, regulation, or 
Executive Order.
    (e) The schedule for environmental impact statements shall include 
the following milestones:
    (1) The publication of the notice of intent;
    (2) The issuance of the draft environmental impact statement;
    (3) The public comment period on the draft environmental impact 
statement, consistent with Sec.  1506.10 of this subchapter;
    (4) The issuance of the final environmental impact statement; and
    (5) The issuance of the record of decision.
    (f) The schedule for environmental assessments shall include the 
following milestones:
    (1) Decision to prepare an environmental assessment;
    (2) Issuance of the draft environmental assessment, where 
applicable;
    (3) The public comment period on the draft environmental 
assessment, consistent with Sec.  1501.5 of this subchapter, where 
applicable; and
    (4) Issuance of the final environmental assessment and decision on 
whether to issue a finding of no significant impact or issue a notice 
of intent to prepare an environmental impact statement.
    (g) An agency may designate a person (such as the project manager 
or a person in the agency's office with NEPA responsibilities) to 
expedite the NEPA process.
    (h) For environmental impact statements, agencies shall make 
schedules for completing the NEPA process publicly available, such as 
on their website or another publicly accessible platform. If agencies 
make subsequent changes to the schedule, agencies shall publish 
revisions to the schedule and explain the basis for substantial 
changes.


Sec.  1501.11  Programmatic environmental documents and tiering.

    (a) Programmatic environmental document. Agencies may prepare 
programmatic environmental documents, which may be either environmental 
impact statements or environmental assessments, to evaluate the 
environmental effects of policies, programs, plans, or groups of 
related activities. When agencies prepare such documents, they should 
be relevant to the agency decisions and timed to coincide with 
meaningful points in agency planning and decision making. Agencies may 
use programmatic environmental documents to conduct a broad or holistic 
evaluation of effects or policy alternatives; evaluate widely 
applicable measures; or avoid duplicative analysis for individual 
actions by first considering relevant issues at a broad or programmatic 
level.
    (1) When preparing programmatic environmental documents (including 
proposals by more than one agency), agencies may find it useful to 
evaluate the proposal(s) in one of the following ways:
    (i) Geographically, including actions occurring in the same general 
location, such as body of water, region, or metropolitan area.
    (ii) Thematically or by sector, including actions that have 
relevant similarities, such as common timing, impacts, alternatives, 
methods of implementation, technology, media, or subject matter.
    (iii) By stage of technological development, including Federal or 
federally assisted research, development, or demonstration programs for 
new technologies that, if applied, could significantly affect the 
quality of the human environment. Documents on such programs should be 
completed before the program has reached a stage of investment or 
commitment to implementation likely to determine subsequent development 
or restrict later alternatives.
    (2) Agency actions that may be appropriate for programmatic 
documents include:
    (i) Programs, policies, or plans, including land use or resource 
management plans;
    (ii) Regulations;
    (iii) National or regional actions;
    (iv) Actions that have multiple stages or phases, and are part of 
an overall plan or program; or

[[Page 49974]]

    (v) A group of projects or related types of projects.
    (3) Agencies should, as appropriate, employ scoping (Sec.  1502.4 
of this subchapter), tiering (paragraph (b) of this section), and other 
methods listed in Sec. Sec.  1500.4 and 1500.5 of this subchapter, to 
describe the relationship between the programmatic document and related 
individual actions and to avoid duplication and delay.
    (b) Tiering. Where an existing environmental impact statement, 
environmental assessment, or programmatic environmental document is 
relevant to a later proposed action, agencies may employ tiering. 
Tiering allows subsequent tiered environmental analysis to avoid 
duplication and focus on issues, effects, or alternatives not fully 
addressed in a programmatic document, environmental impact statement, 
or environmental assessment prepared at an earlier phase or stage. 
Agencies generally should tier their environmental impact statements 
and environmental assessments when it would eliminate repetitive 
discussions of the same issues, focus on the actual issues ripe for 
decision, and exclude from consideration issues already decided.
    (1) When an agency has prepared a programmatic environmental review 
or other environmental impact statement or environmental assessment for 
a program or policy and then prepares a subsequent statement or 
assessment on an action included within the program or policy (such as 
a project- or site-specific action), the tiered document shall discuss 
the relationship between the tiered document and the previous review, 
and summarize and incorporate by reference the issues discussed in the 
broader document. The tiered document shall concentrate on the issues 
specific to the subsequent action, analyzing site-, phase-, or stage-
specific conditions and reasonably foreseeable effects. The agency 
shall provide for public engagement opportunities consistent with the 
type of environmental document prepared and appropriate for the 
location, phase, or stage. The tiered document shall state where the 
earlier document is publicly available.
    (2) Tiering is appropriate when the sequence from an environmental 
impact statement or environmental assessment is:
    (i) From a programmatic, plan, or policy environmental impact 
statement or environmental assessment to a program, plan, or policy 
statement or assessment of lesser or narrower scope or to a site-
specific statement or assessment.
    (ii) From an environmental impact statement or environmental 
assessment on a specific action at an early stage (such as need and 
site selection) to a supplement (which is preferred) or a subsequent 
statement or assessment at a later stage (such as environmental 
mitigation). Tiering in such cases is appropriate when it helps the 
agency to focus on the issues that are ripe for decision and exclude 
from consideration issues already decided or not yet ripe.
    (c) When an agency prepares a programmatic environmental document 
for which judicial review was available, the agency may rely on the 
analysis included in the programmatic environmental document in a 
subsequent environmental document for related actions as follows:
    (1) Within 5 years and without additional review of the analysis in 
the programmatic environmental document, unless there are substantial 
new circumstances or information about the significance of adverse 
effects that bear on the analysis; or
    (2) After 5 years, so long as the agency reevaluates the analysis 
in the programmatic environmental document and any underlying 
assumption to ensure reliance on the analysis remains valid. The agency 
shall briefly document its reevaluation and explain why the analysis 
remains valid considering any new and substantial information or 
circumstances.


Sec.  1501.12  Incorporation by reference into environmental documents.

    Agencies shall incorporate material, such as planning studies, 
analyses, or other relevant information, into environmental documents 
by reference when the effect will be to cut down on bulk without 
impeding agency and public review of the action. Agencies shall cite 
the incorporated material in the document, briefly describe its 
content, and briefly explain the relevance of the incorporated material 
to the environmental document. Agencies shall not incorporate material 
by reference unless it is reasonably available for inspection, such as 
on a publicly accessible website, by potentially interested persons 
within the time allowed for comment. Agencies should provide digital 
references, such as hyperlinks, to the incorporated material or 
otherwise indicate how the public can access the material for 
inspection. Agencies shall not incorporate by reference material based 
on proprietary data that is not available for review and comment.

PART 1502--ENVIRONMENTAL IMPACT STATEMENT


Sec.  1502.1  Purpose of environmental impact statement.

    (a) The primary purpose of an environmental impact statement 
prepared pursuant to section 102(2)(C) of NEPA is to serve as an 
action-forcing device by ensuring agencies consider the environmental 
effects of their action in decision making, so that the policies and 
goals defined in the Act are infused into the ongoing programs and 
actions of the Federal Government.
    (b) Environmental impact statements shall provide full and fair 
discussion of significant effects and shall inform decision makers and 
the public of reasonable alternatives that would avoid or minimize 
adverse effects or enhance the quality of the human environment. 
Agencies shall focus on important environmental issues and reasonable 
alternatives and shall reduce paperwork and the accumulation of 
extraneous background data.
    (c) Environmental impact statements shall be concise, clear, and to 
the point, and shall be supported by evidence that the agency has made 
the necessary environmental analyses. An environmental impact statement 
is more than a disclosure document. Federal agencies shall use 
environmental impact statements in conjunction with other relevant 
material to plan actions and make decisions.


Sec.  1502.2  Implementation.

    To achieve the purposes set forth in Sec.  1502.1 agencies shall 
prepare environmental impact statements in the following manner:
    (a) Environmental impact statements shall not be encyclopedic.
    (b) Environmental impact statements shall discuss effects in 
proportion to their significance. There shall be only brief discussion 
of other than important issues. As in an environmental assessment and 
finding of no significant impact, there should be only enough 
discussion to show why more study is not warranted.
    (c) Environmental impact statements shall be analytical, concise, 
and no longer than necessary to comply with NEPA and with the 
regulations in this subchapter. Length should be proportional to 
potential environmental effects and the scope and complexity of the 
action.
    (d) Environmental impact statements shall state how alternatives 
considered in them and decisions based on them will or will not achieve 
the requirements of sections 101 and 102(1) of NEPA, the regulations in 
this

[[Page 49975]]

subchapter, and other environmental laws and policies.
    (e) The range of alternatives discussed in environmental impact 
statements shall encompass those to be considered by the decision 
maker.
    (f) Agencies shall not commit resources prejudicing the selection 
of alternatives before making a decision (see also Sec.  1506.1 of this 
subchapter).
    (g) Environmental impact statements shall serve as the means of 
assessing the environmental impact of proposed agency actions, rather 
than justifying decisions already made.


Sec.  1502.3  Statutory requirements for environmental impact 
statements.

    As required by section 102(2)(C) of NEPA, environmental impact 
statements are to be included in every Federal agency recommendation or 
report on proposals for legislation and other major Federal actions 
significantly affecting the quality of the human environment.


Sec.  1502.4  Scoping.

    (a) Generally. Agencies shall use an early and open process, 
consistent with Sec.  1501.9 of this subchapter, to determine the scope 
of issues for analysis in an environmental impact statement, including 
identifying the important issues and eliminating from further study 
unimportant issues. Scoping may begin as soon as practicable after the 
proposal for action is sufficiently developed for agency consideration. 
Scoping may include appropriate pre-application procedures or work 
conducted prior to publication of the notice of intent (see Sec. Sec.  
1501.3 and 1501.9 of this subchapter).
    (b) Scoping outreach. When preparing an environmental impact 
statement, agencies shall facilitate notification to persons and 
agencies who may be interested or affected by an agency's proposed 
action, consistent with Sec.  1501.9 of this subchapter. As part of the 
scoping process, the lead agency may hold a scoping meeting or 
meetings, publish scoping information, or use other means to 
communicate with those persons or agencies who may be interested or 
affected, which the agency may integrate with any other early planning 
meeting.
    (c) Inviting participation. As part of the scoping process, and 
consistent with Sec.  1501.9 of this subchapter, the lead agency shall 
invite the participation of likely affected Federal, State, Tribal, and 
local agencies and governments, the proponent of the action, and other 
likely affected or interested persons (including those who might not be 
in accord with the action), unless there is a limited exception under 
Sec.  1507.3(d)(3) of this subchapter.
    (d) Additional scoping responsibilities. As part of the scoping 
process, the lead agency shall:
    (1) Identify and eliminate from detailed study the issues that are 
not important or have been covered by prior environmental review(s) 
(Sec. Sec.  1501.12 and 1506.3 of this subchapter), narrowing the 
discussion of these issues in the environmental impact statement to a 
brief presentation of why they will not be important or providing a 
reference to their coverage elsewhere.
    (2) Allocate assignments for preparation of the environmental 
impact statement among the lead and cooperating agencies, with the lead 
agency retaining responsibility for the statement.
    (3) Indicate any public environmental assessments and other 
environmental impact statements that are being or will be prepared and 
are related to but are not part of the scope of the environmental 
impact statement under consideration.
    (4) Identify other environmental review, authorization, and 
consultation requirements so the lead and cooperating agencies may 
prepare other required analyses and studies concurrently and integrated 
with the environmental impact statement, as provided in Sec.  1502.24 
of this subchapter.
    (5) Indicate the relationship between the timing of the preparation 
of environmental analyses and the agencies' tentative planning and 
decision-making schedule.
    (e) Notice of intent. As soon as practicable after determining that 
a proposal is sufficiently developed to allow for meaningful public 
comment and requires an environmental impact statement, the lead agency 
shall publish a notice of intent to prepare an environmental impact 
statement in the Federal Register. In addition to the Federal Register 
notice, an agency also may publish notification in accordance with 
Sec.  1501.9 of this subchapter. The notice shall include, as 
appropriate:
    (1) The purpose and need for the proposed action;
    (2) A preliminary description of the proposed action and 
alternatives the environmental impact statement will consider;
    (3) A brief summary of expected effects;
    (4) Anticipated permits and other authorizations;
    (5) A schedule for the decision-making process;
    (6) A description of the public scoping process, including any 
scoping meeting(s);
    (7) A request for comment on alternatives and effects, as well as 
on relevant information, studies, or analyses with respect to the 
proposed action;
    (8) Contact information for a person within the agency who can 
answer questions about the proposed action and the environmental impact 
statement;
    (9) Identification of any cooperating and participating agencies, 
and any information that such agencies require in the notice to 
facilitate their decisions or authorizations that will rely upon the 
resulting environmental impact statement; and
    (10) A unique identification number for tracking purposes, which 
the agency shall reference on all environmental documents prepared for 
the proposed action.
    (f) Notices of withdrawal or cancellation. If an agency withdraws, 
cancels, or otherwise ceases the consideration of a proposed action 
before completing a final environmental impact statement, the agency 
shall publish a notice in the Federal Register.
    (g) Revisions. An agency shall revise the determinations made under 
paragraphs (b), (c), and (d) of this section if substantial changes are 
made later in the proposed action, or if important new circumstances or 
information arise that bear on the proposal or its effects.


Sec.  1502.5  Timing.

    An agency should commence preparation of an environmental impact 
statement as close as practicable to the time the agency is developing 
or receives a proposal so that preparation can be completed in time for 
the final statement to be included in any recommendation or report on 
the proposal. The statement shall be prepared early enough so that it 
can serve as an important practical contribution to the decision-making 
process and will not be used to rationalize or justify decisions 
already made (Sec. Sec.  1501.2 of this subchapter and 1502.2). For 
instance:
    (a) For projects directly undertaken by Federal agencies, the 
agency shall prepare the environmental impact statement at the 
feasibility analysis (e.g., go/no-go) stage and may supplement it at a 
later stage, if necessary.
    (b) For applications to the agency requiring an environmental 
impact statement, the agency shall commence the statement as soon as 
practicable after receiving the complete application. Federal agencies 
should work together

[[Page 49976]]

and with potential applicants and applicable State, Tribal, and local 
agencies and governments prior to receipt of the application.
    (c) For adjudication, the final environmental impact statement 
shall normally precede the final staff recommendation and that portion 
of the public hearing related to the impact study. In appropriate 
circumstances, the statement may follow preliminary hearings designed 
to gather information for use in the statement.
    (d) For informal rulemaking, the draft environmental impact 
statement shall normally accompany the proposed rule.


Sec.  1502.6  Interdisciplinary preparation.

    Agencies shall prepare environmental impact statements using an 
interdisciplinary approach that will ensure the integrated use of the 
natural and social sciences and the environmental design arts (section 
102(2)(A) of NEPA). The disciplines of the preparers shall be 
appropriate to the scope and issues identified in the scoping process 
(Sec.  1502.4 of this subchapter).


Sec.  1502.7  Page limits.

    The text of final environmental impact statements, not including 
citations or appendices, shall not exceed 150 pages except for 
proposals of extraordinary complexity, which shall not exceed 300 
pages.


Sec.  1502.8  Writing.

    Agencies shall write environmental impact statements in plain 
language and should use, as relevant, appropriate visual aids or charts 
so that decision makers and the public can readily understand such 
statements. Agencies should employ writers of clear prose or editors to 
write, review, or edit statements, which shall be based upon the 
analysis and supporting data from the natural and social sciences and 
the environmental design arts.


Sec.  1502.9  Draft, final, and supplemental statements.

    (a) Generally. Except for proposals for legislation as provided in 
Sec.  1506.8 of this subchapter, agencies shall prepare environmental 
impact statements in two stages and, where necessary, supplement them 
as provided in paragraph (d)(1) of this section.
    (b) Draft environmental impact statements. Agencies shall prepare 
draft environmental impact statements in accordance with the scope 
decided upon in the scoping process (Sec.  1502.4 of this subchapter). 
The lead agency shall work with the cooperating agencies and shall 
obtain comments as required in part 1503 of this subchapter. To the 
fullest extent practicable, the draft statement must meet the 
requirements established for final statements in section 102(2)(C) of 
NEPA and in the regulations in this subchapter. If the agency 
determines that a draft statement is so inadequate as to preclude 
meaningful analysis, the agency shall prepare and publish a 
supplemental draft of the appropriate portion. At appropriate points in 
the draft statement, the agency shall discuss all major points of view 
on the environmental effects of the alternatives, including the 
proposed action.
    (c) Final environmental impact statements. Final environmental 
impact statements shall consider and respond to comments as required in 
part 1503 of this subchapter. At appropriate points in the final 
statement, the agency shall discuss any responsible opposing view that 
was not adequately discussed in the draft statement and shall indicate 
the agency's response to the issues raised.
    (d) Supplemental environmental impact statements. Agencies:
    (1) Shall prepare supplements to either draft or final 
environmental impact statements if a major Federal action remains to 
occur, and:
    (i) The agency makes substantial changes to the proposed action 
that are relevant to environmental concerns; or
    (ii) There are substantial or important new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its effects.
    (2) May also prepare supplements when the agency determines that 
the purposes of the Act will be furthered by doing so.
    (3) Shall prepare, publish, and file a supplement to a statement 
(exclusive of scoping (Sec.  1502.4 of this subchapter)) as a draft and 
final statement, as is appropriate to the stage of the statement 
involved, unless the Council approves alternative procedures (Sec.  
1506.12 of this subchapter).
    (e) Reevaluation. An agency may reevaluate an environmental impact 
statement and find that changes to the proposed action or new 
circumstances or information relevant to environmental concerns are not 
substantial or that the underlying assumptions of the analysis remains 
valid, and therefore do not require a supplement under paragraph (d) of 
this section. The agency should document the finding consistent with 
its agency NEPA procedures (Sec.  1507.3 of this subchapter), or, if 
necessary, in a finding of no significant impact supported by an 
environmental assessment.


Sec.  1502.10  Recommended format.

    (a) Agencies shall use a format for environmental impact statements 
that will encourage good analysis and clear presentation of the 
alternatives, including the proposed action. Agencies should use the 
following standard format for environmental impact statements unless 
the agency determines that there is a more effective format for 
communication:
    (1) Cover (Sec.  1501.11);
    (2) Summary (Sec.  1502.12);
    (3) Table of contents;
    (4) Purpose of and need for action (Sec.  1502.13);
    (5) Alternatives including the proposed action (sections 
102(2)(C)(iii) and 102(2)(H) of NEPA) (Sec.  1502.14);
    (6) Affected environment and environmental consequences (especially 
sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA) (Sec. Sec.  1502.15 
and 1502.16); and
    (7) Appendices (Sec.  1502.19), including the summary of scoping 
information (Sec.  1502.17) and the list of preparers (Sec.  1502.18).
    (b) If an agency uses a different format, it shall include 
paragraph (a) of this section, as further described in Sec. Sec.  
1502.11 through 1502.19, in any appropriate format.


Sec.  1502.11  Cover.

    The environmental impact statement cover shall not exceed one page 
and shall include:
    (a) A list of the lead, joint lead and any cooperating agencies;
    (b) The title of the proposed action that is the subject of the 
statement (and, if appropriate, the titles of related cooperating 
agency actions), together with the State(s) and county(ies) (or other 
jurisdiction(s), if applicable) where the action is located;
    (c) The name, address, and telephone number of the person at the 
agency who can supply further information;
    (d) A designation of the statement as a draft, final, or draft or 
final supplement;
    (e) A one-paragraph abstract of the statement;
    (f) The date by which the agency must receive comments (computed in 
cooperation with the Environmental Protection Agency under Sec.  
1506.10 of this subchapter); and
    (g) The identification number included in the notice of intent 
(Sec.  1502.4(e)(10)).


Sec.  1502.12  Summary.

    Each environmental impact statement shall contain a summary that 
adequately and accurately summarizes the statement. The summary shall 
include the major conclusions and summarize

[[Page 49977]]

any disputed issues raised by agencies and the public, any issues to be 
resolved, and key differences among alternatives, and identify the 
environmentally preferable alternative or alternatives. Agencies shall 
write the summary in plain language and should use, as relevant, 
appropriate visual aids and charts. The summary normally should not 
exceed 15 pages.


Sec.  1502.13  Purpose and need.

    The environmental impact statement shall include a statement that 
briefly summarizes the underlying purpose and need for the proposed 
agency action.


Sec.  1502.14  Alternatives including the proposed action.

    The alternatives section is the heart of the environmental impact 
statement. The alternatives section should identify the reasonably 
foreseeable environmental effects of the proposed action and the 
alternatives in comparative form based on the information and analysis 
presented in the sections on the affected environment (Sec.  1502.15) 
and the environmental consequences (Sec.  1502.16). In doing so, the 
analysis should sharply define the issues for the decision maker and 
the public and provide a clear basis for choice among options. In this 
section, agencies shall:
    (a) Rigorously explore and objectively evaluate reasonable 
alternatives to the proposed action, and, for alternatives that the 
agency eliminated from detailed study, briefly discuss the reasons for 
their elimination. The agency need not consider every conceivable 
alternative to a proposed action; rather, it shall consider a 
reasonable range of alternatives that will foster informed decision 
making. Agencies also may include reasonable alternatives not within 
the jurisdiction of the lead agency.
    (b) Discuss each alternative considered in detail, including the 
proposed action, so that reviewers may evaluate their comparative 
merits.
    (c) Include the no action alternative.
    (d) Identify the agency's preferred alternative or alternatives, if 
one or more exists, in the draft statement and identify such 
alternative in the final statement unless another law prohibits the 
expression of such a preference.
    (e) Include appropriate mitigation measures not already included in 
the proposed action or alternatives.
    (f) Identify the environmentally preferable alternative or 
alternatives. The environmentally preferable alternative will best 
promote the national environmental policy expressed in section 101 of 
NEPA by maximizing environmental benefits, such as addressing climate 
change-related effects or disproportionate and adverse effects on 
communities with environmental justice concerns; protecting, 
preserving, or enhancing historic, cultural, Tribal, and natural 
resources, including rights of Tribal Nations that have been reserved 
through treaties, statutes, or Executive Orders; or causing the least 
damage to the biological and physical environment. The environmentally 
preferable alternative may be the proposed action, the no action 
alternative, or a reasonable alternative.


Sec.  1502.15  Affected environment.

    (a) The environmental impact statement shall succinctly describe 
the environment of the area(s) to be affected or created by the 
alternatives under consideration, including the reasonably foreseeable 
environmental trends and planned actions in the area(s).
    (b) Agencies should use high-quality information, including the 
best available science and data, to describe reasonably foreseeable 
environmental trends, including anticipated climate-related changes to 
the environment, and when such information is lacking, provide relevant 
information consistent with Sec.  1502.21. This description of baseline 
environmental conditions and reasonably foreseeable trends should 
inform the agency's analysis of environmental consequences and 
mitigation measures (Sec.  1502.16).
    (c) The environmental impact statement may combine the description 
of the affected environment with evaluation of the environmental 
consequences (Sec.  1502.16). The description should be no longer than 
necessary to understand the relevant affected environment and the 
effects of the alternatives. Data and analyses in a statement shall be 
commensurate with the importance of the effect, with less important 
material summarized, consolidated, or simply referenced. Agencies shall 
avoid useless bulk in statements and shall concentrate effort and 
attention on important issues. Verbose descriptions of the affected 
environment are themselves no measure of the adequacy of an 
environmental impact statement.


Sec.  1502.16  Environmental consequences.

    (a) The environmental consequences section forms the scientific and 
analytic basis for the comparisons under Sec.  1502.14. It shall 
consolidate the discussions of those elements required by sections 
102(2)(C)(i), (ii), (iv), and (v) of NEPA that are within the scope of 
the environmental impact statement and as much of section 
102(2)(C)(iii) of NEPA as is necessary to support the comparisons. This 
section should not duplicate discussions in Sec.  1502.14. The 
discussion shall include:
    (1) The reasonably foreseeable environmental effects of the 
proposed action and reasonable alternatives to the proposed action and 
the significance of those effects (Sec.  1501.3 of this subchapter). 
The comparison of the proposed action and reasonable alternatives shall 
be based on the discussion of the effects, focusing on the significant 
or important effects. The no action alternative should serve as the 
baseline against which the proposed action and other alternatives are 
compared.
    (2) Any reasonably foreseeable adverse environmental effects that 
cannot be avoided should the proposal be implemented.
    (3) An analysis of the effects of the no action alternative, 
including any adverse environmental effects.
    (4) The relationship between short-term uses of the human 
environment and the maintenance and enhancement of long-term 
productivity.
    (5) Any irreversible or irretrievable commitments of Federal 
resources that would be involved in the proposal should it be 
implemented.
    (6) Possible conflicts between the proposed action and the 
objectives of Federal, regional, State, Tribal, and local plans, 
policies, and controls for the area concerned, including those 
addressing climate change (Sec.  1506.2(d) of this subchapter).
    (7) Any reasonably foreseeable climate change-related effects, 
including the effects of climate change on the proposed action and 
alternatives.
    (8) Energy requirements and conservation potential of various 
alternatives and mitigation measures.
    (9) Natural or depletable resource requirements and conservation 
potential of various alternatives and mitigation measures.
    (10) Any relevant risk reduction, resiliency, or adaptation 
measures incorporated into the proposed action or alternatives, 
informed by relevant science and data on the affected environment and 
expected future conditions.
    (11) Urban quality, historic and cultural resources, and the design 
of the built environment, including the reuse and conservation 
potential of various alternatives and mitigation measures.
    (12) Means to mitigate adverse environmental impacts (if not fully 
covered under Sec.  1502.14(e)).
    (13) Where applicable, economic and technical considerations, 
including the

[[Page 49978]]

economic benefits of the proposed action.
    (14) The potential for disproportionate and adverse human health 
and environmental effects on communities with environmental justice 
concerns.
    (b) Economic or social effects by themselves do not require 
preparation of an environmental impact statement. However, when the 
agency determines that economic or social and natural or physical 
environmental effects are interrelated, the environmental impact 
statement shall discuss these effects on the human environment.


Sec.  1502.17  Summary of scoping information.

    (a) The draft environmental impact statement shall include a 
summary of information, including alternatives and analyses, submitted 
by commenters during the scoping process for consideration by the lead 
and cooperating agencies in their development of the draft 
environmental impact statement.
    (b) The agency shall append to the draft environmental impact 
statement or otherwise make publicly available all comments (or 
summaries thereof where the response has been exceptionally voluminous) 
received during the scoping process.


Sec.  1502.18  List of preparers.

    The environmental impact statement shall list the names, together 
with their qualifications (expertise, experience, professional 
disciplines), of the persons who were primarily responsible for 
preparing the environmental impact statement or important background 
papers, including basic components of the statement. Where possible, 
the environmental impact statement shall identify the persons who are 
responsible for a particular analysis, including analyses in background 
papers. Normally the list will not exceed two pages.


Sec.  1502.19  Appendix.

    If an agency prepares an appendix, the agency shall publish it with 
the environmental impact statement, and it shall consist of, as 
appropriate:
    (a) Material prepared in connection with an environmental impact 
statement (as distinct from material that is not so prepared and is 
incorporated by reference (Sec.  1501.12 of this subchapter)).
    (b) Material substantiating any analysis fundamental to the impact 
statement.
    (c) Material relevant to the decision to be made.
    (d) For draft environmental impact statements, all comments (or 
summaries thereof where the response has been exceptionally voluminous) 
received during the scoping process that identified information for the 
agency's consideration.
    (e) For final environmental impact statements, the comment 
summaries and responses consistent with Sec.  1503.4 of this chapter.


Sec.  1502.20  Publication of the environmental impact statement.

    Agencies shall publish the entire draft and final environmental 
impact statements and unchanged statements as provided in Sec.  
1503.4(c) of this subchapter. The agency shall transmit the entire 
statement electronically (or in paper copy, if requested due to 
economic or other hardship) to:
    (a) Any Federal agency that has jurisdiction by law or special 
expertise with respect to any environmental impact involved and any 
appropriate Federal, State, Tribal, or local agency authorized to 
develop and enforce environmental standards.
    (b) The applicant, if any.
    (c) Any person, organization, or agency requesting the entire 
environmental impact statement.
    (d) In the case of a final environmental impact statement, any 
person, organization, or agency that submitted substantive comments on 
the draft.


Sec.  1502.21  Incomplete or unavailable information.

    (a) When an agency is evaluating reasonably foreseeable significant 
adverse effects on the human environment in an environmental impact 
statement, and there is incomplete or unavailable information, the 
agency shall make clear that such information is lacking.
    (b) If the incomplete information relevant to reasonably 
foreseeable significant adverse effects is essential to a reasoned 
choice among alternatives, and the overall costs of obtaining it are 
not unreasonable, the agency shall include the information in the 
environmental impact statement.
    (c) If the information relevant to reasonably foreseeable 
significant adverse effects cannot be obtained because the overall 
costs of obtaining it are unreasonable or the means to obtain it are 
not known, the agency shall include within the environmental impact 
statement:
    (1) A statement that such information is incomplete or unavailable;
    (2) A statement of the relevance of the incomplete or unavailable 
information to evaluating reasonably foreseeable significant adverse 
effects on the human environment;
    (3) A summary of existing credible scientific evidence that is 
relevant to evaluating the reasonably foreseeable significant adverse 
effects on the human environment; and
    (4) The agency's evaluation of such effects based upon theoretical 
approaches or research methods generally accepted in the scientific 
community.
    (d) For the purposes of this section, ``reasonably foreseeable'' 
includes effects that have catastrophic consequences, even if their 
probability of occurrence is low, provided that the analysis of the 
effects is supported by credible scientific evidence, is not based on 
pure conjecture, and is within the rule of reason.


Sec.  1502.22  Cost-benefit analysis.

    If an agency is considering a cost-benefit analysis for the 
proposed action relevant to the choice among alternatives with 
different environmental effects, the agency shall incorporate the cost-
benefit analysis by reference or append it to the statement as an aid 
in evaluating the environmental consequences. In such cases, to assess 
the adequacy of compliance with section 102(2)(B) of NEPA (ensuring 
appropriate consideration of unquantified environmental amenities and 
values in decision making, along with economical and technical 
considerations), the statement shall discuss the relationship between 
that analysis and any analyses of unquantified environmental impacts, 
values, and amenities. For purposes of complying with the Act, agencies 
need not display the weighing of the merits and drawbacks of the 
various alternatives in a monetary cost-benefit analysis and should not 
do so when there are important qualitative considerations. However, an 
environmental impact statement should at least indicate those 
considerations, including factors not related to environmental quality, 
that are likely to be relevant and important to a decision.


Sec.  1502.23  Methodology and scientific accuracy.

    (a) Agencies shall ensure the professional integrity, including 
scientific integrity, of the discussions and analyses in environmental 
documents. Agencies shall use high-quality information, such as best 
available science and reliable data, models, and resources, including 
existing sources and materials, to analyze effects resulting from a 
proposed action and alternatives. Agencies may use any reliable data 
sources, such as remotely gathered

[[Page 49979]]

information or statistical models. Agencies should explain any relevant 
assumptions or limitations of the information or the particular model 
or methodology selected for use.
    (b) Agencies shall identify any methodologies used and shall make 
explicit reference to the scientific and other sources relied upon for 
conclusions in the statement. Agencies may place discussion of 
methodology in an appendix. Nothing in this section is intended to 
prohibit agencies from compliance with the requirements of other 
statutes pertaining to scientific and technical research.
    (c) Where appropriate, agencies shall use projections when 
evaluating the reasonably foreseeable effects, including climate 
change-related effects. Such projections may employ mathematical or 
other models that project a range of possible future outcomes, so long 
as agencies disclose the relevant assumptions or limitations.


Sec.  1502.24  Environmental review and consultation requirements.

    (a) To the fullest extent possible, agencies shall prepare draft 
environmental impact statements concurrent and integrated with 
environmental impact analyses and related surveys and studies required 
by all other Federal environmental review laws and Executive orders 
applicable to the proposed action, including the Fish and Wildlife 
Coordination Act (16 U.S.C. 661 et seq.), the National Historic 
Preservation Act of 1966 (54 U.S.C. 300101 et seq.), and the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (b) The draft environmental impact statement shall list all Federal 
permits, licenses, and other authorizations that must be obtained in 
implementing the proposal. If it is uncertain whether a Federal permit, 
license, or other authorization is necessary, the draft environmental 
impact statement shall so indicate.

PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS


Sec.  1503.1  Inviting comments and requesting information and 
analyses.

    (a) After preparing a draft environmental impact statement and 
before preparing a final environmental impact statement the agency 
shall:
    (1) Obtain the comments of any Federal agency that has jurisdiction 
by law or special expertise with respect to any environmental impact 
involved or is authorized to develop and enforce environmental 
standards; and
    (2) Request the comments of:
    (i) Appropriate State, Tribal, and local agencies that are 
authorized to develop and enforce environmental standards;
    (ii) State, Tribal, or local governments that may be affected by 
the proposed action;
    (iii) Any agency that has requested it receive statements on 
actions of the kind proposed;
    (iv) The applicant, if any; and
    (v) The public, affirmatively soliciting comments in a manner 
designed to inform those persons or organizations who may be interested 
in or affected by the proposed action.
    (b) An agency may request comments on a final environmental impact 
statement before the final decision and set a deadline for providing 
such comments. Other agencies or persons may make comments consistent 
with the time periods under Sec.  1506.10 of this subchapter.
    (c) An agency shall provide for electronic submission of public 
comments, with reasonable measures to ensure the comment process is 
accessible to affected persons.


Sec.  1503.2  Duty to comment.

    Cooperating agencies and agencies that are authorized to develop 
and enforce environmental standards shall comment on environmental 
impact statements within their jurisdiction, expertise, or authority 
within the time period specified for comment in Sec.  1506.10 of this 
subchapter. A Federal agency may reply that it has no comment. If a 
cooperating agency is satisfied that the environmental impact statement 
adequately reflects its views, it should reply that it has no comment.


Sec.  1503.3  Specificity of comments and information.

    (a) To promote informed decision making, comments on an 
environmental impact statement or on a proposed action shall be as 
specific as possible, and may address either the adequacy of the 
statement or the merits of the alternatives discussed or both. Comments 
should explain why the issues raised are important to the consideration 
of potential environmental effects and alternatives to the proposed 
action. Where possible, comments should reference the corresponding 
section or page number of the draft environmental impact statement, 
propose specific changes to those parts of the statement, and describe 
any data, sources, or methodologies that support the proposed changes.
    (b) When a participating agency criticizes a lead agency's 
predictive methodology, the participating agency should describe the 
alternative methodology that it prefers and why.
    (c) A cooperating agency shall specify in its comments whether it 
needs additional information to fulfill other applicable environmental 
review or consultation requirements and what information it needs. In 
particular, it shall specify any additional information it needs to 
comment adequately on the draft statement's analysis of significant 
effects associated with the granting or approving by that cooperating 
agency of necessary Federal permits, licenses, or authorizations.
    (d) A cooperating agency with jurisdiction by law shall specify 
mitigation measures it considers necessary to allow the agency to grant 
or approve applicable authorizations or concurrences.


Sec.  1503.4  Response to comments.

    (a) An agency preparing a final environmental impact statement 
shall consider substantive comments timely submitted during the public 
comment period. The agency shall respond to individual comments or 
groups of comments. In the final environmental impact statement, the 
agency may respond by:
    (1) Modifying alternatives including the proposed action;
    (2) Developing and evaluating alternatives not previously given 
serious consideration by the agency;
    (3) Supplementing, improving, or modifying its analyses;
    (4) Making factual corrections; or
    (5) Explaining why the comments do not warrant further agency 
response, recognizing that agencies are not required to respond to each 
comment.
    (b) An agency shall append or otherwise publish all substantive 
comments received on the draft statement (or summaries thereof where 
the response has been exceptionally voluminous).
    (c) If changes in response to comments are minor and are confined 
to the responses described in paragraphs (a)(4) and (5) of this 
section, an agency may write any changes on errata sheets and attach 
the responses to the statement instead of rewriting the draft 
statement. In such cases, the agency shall publish the final statement 
(Sec.  1502.20 of this subchapter), which includes the draft statement, 
the comments, responses to those comments, and errata sheets. The 
agency shall file the final statement with the Environmental Protection 
Agency (Sec.  1506.10 of this subchapter).

[[Page 49980]]

PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED 
FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY


Sec.  1504.1  Purpose.

    (a) This part establishes procedures for referring to the Council 
Federal interagency disagreements concerning proposed major Federal 
actions that might cause unsatisfactory environmental effects. It 
provides means for early resolution of such disagreements, and 
encourages Federal agencies to engage with each other as early as 
practicable to resolve interagency disagreements concerning proposed 
major Federal actions before referring disputes to the Council. This 
part also establishes procedures for Federal agencies to submit a 
request to the Council to provide informal dispute resolution on NEPA 
issues before formally referring disputes to the Council.
    (b) Section 309 of the Clean Air Act (42 U.S.C. 7609) directs the 
Administrator of the Environmental Protection Agency to review and 
comment publicly on the environmental impacts of Federal activities, 
including actions for which agencies prepare environmental impact 
statements. If, after this review, the Administrator determines that 
the matter is ``unsatisfactory from the standpoint of public health or 
welfare or environmental quality,'' section 309 directs that the matter 
be referred to the Council.
    (c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other 
Federal agencies may prepare similar reviews of environmental impact 
statements, including judgments on the acceptability of anticipated 
environmental impacts. These agencies must make these reviews available 
to the President, the Council, and the public.


Sec.  1504.2  Early dispute resolution.

    (a) Federal agencies should engage in interagency coordination and 
collaboration in their planning and decision-making processes and 
should identify and resolve disputes concerning proposed major Federal 
actions early in the NEPA process. To the extent practicable, agencies 
should elevate issues to appropriate agency officials or the Council in 
a timely manner that will accommodate schedules consistent with Sec.  
1501.10 of this subchapter.
    (b) A Federal agency may request that the Council engage in 
informal dispute resolution to provide recommendations on how to 
resolve an interagency dispute concerning an environmental review. In 
making the request, the agency shall provide the Council with a summary 
of the proposed action, information on the disputed issues, and agency 
points of contact.
    (c) In response to a request for informal dispute resolution, the 
Council may request additional information, provide non-binding 
recommendations, convene meetings of those agency decision makers 
necessary to resolve disputes, or determine that informal dispute 
resolution is unhelpful or inappropriate.


Sec.  1504.3  Criteria and procedure for referrals and response.

    (a) Federal agencies should make environmental referrals to the 
Council only after concerted, timely (as early as practicable in the 
process), but unsuccessful attempts to resolve differences with the 
lead agency. In determining what environmental objections to the matter 
are appropriate to refer to the Council, an agency should weigh 
potential adverse environmental effects, considering:
    (1) Possible violation of national environmental standards or 
policies;
    (2) Severity;
    (3) Geographical scope;
    (4) Duration;
    (5) Importance as precedents;
    (6) Availability of environmentally preferable alternatives; and
    (7) Economic and technical considerations, including the economic 
costs of delaying or impeding the decision making of the agencies 
involved in the action.
    (b) A Federal agency making the referral to the Council shall:
    (1) Notify the lead agency at the earliest possible time that it 
intends to refer a matter to the Council unless a satisfactory 
agreement is reached;
    (2) Include such a notification whenever practicable in the 
referring agency's comments on the environmental assessment or draft 
environmental impact statement;
    (3) Identify any essential information that is lacking and request 
that the lead agency make it available at the earliest possible time; 
and
    (4) Send copies of the referring agency's views to the Council.
    (c) The referring agency shall deliver its referral to the Council 
no later than 25 days after the lead agency has made the final 
environmental impact statement available to the Environmental 
Protection Agency, participating agencies, and the public, and in the 
case of an environmental assessment, no later than 25 days after the 
lead agency makes it available. Except when the lead agency grants an 
extension of this period, the Council will not accept a referral after 
that date.
    (d) The referral shall consist of:
    (1) A copy of the letter signed by the head of the referring agency 
and delivered to the lead agency informing the lead agency of the 
referral and the reasons for it; and
    (2) A statement supported by factual evidence leading to the 
conclusion that the matter is unsatisfactory from the standpoint of 
public health or welfare or environmental quality. The statement shall:
    (i) Identify any disputed material facts and incorporate (by 
reference if appropriate) agreed upon facts;
    (ii) Identify any existing environmental requirements or policies 
that would be violated by the matter;
    (iii) Present the reasons for the referral;
    (iv) Contain a finding by the agency whether the issue raised is of 
national importance because of the threat to national environmental 
resources or policies or for some other reason;
    (v) Review the steps taken by the referring agency to bring its 
concerns to the attention of the lead agency at the earliest possible 
time; and
    (vi) Give the referring agency's recommendations as to what 
mitigation alternative, further study, or other course of action 
(including abandonment of the matter) are necessary to remedy the 
situation.
    (e) No later than 25 days after the referral to the Council, the 
lead agency may deliver a response to the Council and the referring 
agency. If the lead agency requests more time and gives assurance that 
the matter will not go forward in the interim, the Council may grant an 
extension. The response shall:
    (1) Address fully the issues raised in the referral;
    (2) Be supported by evidence and explanations, as appropriate; and
    (3) Give the lead agency's response to the referring agency's 
recommendations.
    (f) Applicants may provide views in writing to the Council no later 
than the response.
    (g) No later than 25 days after receipt of both the referral and 
any response or upon being informed that there will be no response 
(unless the lead agency agrees to a longer time), the Council may take 
one or more of the following actions:
    (1) Conclude that the process of referral and response has 
successfully resolved the problem.
    (2) Initiate discussions with the agencies with the objective of 
mediation with referring and lead agencies.

[[Page 49981]]

    (3) Obtain additional views and information.
    (4) Determine that the issue is not one of national importance and 
request the referring and lead agencies to pursue their decision 
process.
    (5) Determine that the referring and lead agencies should further 
negotiate the issue, and the issue is not appropriate for Council 
consideration until one or more heads of agencies report to the Council 
that the agencies' disagreements are irreconcilable.
    (6) Publish its findings and recommendations (including, where 
appropriate, a finding that the submitted evidence does not support the 
position of an agency).
    (7) When appropriate, submit the referral and the response together 
with the Council's recommendation to the President for action.
    (h) The Council shall take no longer than 60 days to complete the 
actions specified in paragraph (g)(2), (3), or (5) of this section.
    (i) The referral process is not intended to create any private 
rights of action or to be judicially reviewable because any voluntary 
resolutions by the agency parties do not represent final agency action 
and instead are only provisional and dependent on later consistent 
action by the action agencies.

PART 1505--NEPA AND AGENCY DECISION MAKING


Sec.  1505.1  [Reserved]


Sec.  1505.2  Record of decision in cases requiring environmental 
impact statements.

    At the time of its decision (Sec.  1506.10 of this subchapter) or, 
if appropriate, its recommendation to Congress, each agency shall 
prepare and timely publish a concise public record of decision or joint 
record of decision. The record, which each agency may integrate into 
any other record it prepares, shall:
    (a) State the decision.
    (b) Identify alternatives considered by the agency in reaching its 
decision. The agency also shall specify the environmentally preferable 
alternative or alternatives (Sec.  1502.14(f) of this subchapter). The 
agency may discuss preferences among alternatives based on relevant 
factors, including environmental, economic, and technical 
considerations and agency statutory missions. The agency shall identify 
and discuss all such factors, including any essential considerations of 
national policy, that the agency balanced in making its decision and 
state how those considerations entered into its decision.
    (c) State whether the agency has adopted all practicable means to 
mitigate environmental harm from the alternative selected, and if not, 
why the agency did not. When an agency includes mitigation as a 
component of the proposed action and relies on implementation of that 
mitigation to analyze the reasonably foreseeable environmental effects, 
the mitigation shall be enforceable, such as through permit conditions, 
agreements, or other measures. The agency shall identify the authority 
for enforceable mitigation, and adopt a monitoring and compliance plan 
consistent with Sec.  1505.3(c).


Sec.  1505.3  Implementing the decision.

    (a) Agencies may provide for monitoring to assure that their 
decisions are carried out and should do so in important cases. 
Mitigation (Sec.  1505.2(c)) and other conditions established in the 
environmental impact statement or during its review and committed as 
part of the decision shall be implemented by the lead agency or other 
appropriate consenting agency. The lead agency shall:
    (1) Include appropriate conditions in grants, permits, or other 
approvals; and
    (2) Condition funding of actions on mitigation.
    (b) The lead or cooperating agency should, where relevant and 
appropriate, incorporate mitigation measures that address or ameliorate 
significant adverse human health and environmental effects of proposed 
Federal actions that disproportionately and adversely affect 
communities with environmental justice concerns.
    (c) The lead or cooperating agency shall prepare a monitoring and 
compliance plan when the environmental assessment or environmental 
impact statement relies on mitigation as a component of the proposed 
action to analyze the reasonably foreseeable environmental effects, 
including to determine the significance of those effects, and the 
agency incorporates the mitigation into a record of decision, finding 
of no significant impact, or separate document, consistent with the 
following:
    (1) Contents. The agency should tailor the plan to the complexity 
of the mitigation committed to and include:
    (i) A basic description of the mitigation measure or measures;
    (ii) The parties responsible for monitoring and implementing the 
mitigation;
    (iii) If appropriate, how monitoring information will be made 
publicly available;
    (iv) The anticipated timeframe for implementing and completing 
mitigation;
    (v) The standards for determining compliance with the mitigation 
and the consequences of non-compliance; and
    (vi) How the mitigation will be funded.
    (2) No ongoing Federal action. An agency does not need to 
supplement its environmental impact statement or environmental 
assessment or revise its record of decision or finding of no 
significant impact or separate decision document based solely on new 
information developed through the monitoring and compliance plan.

PART 1506--OTHER REQUIREMENTS OF NEPA


Sec.  1506.1  Limitations on actions during NEPA process.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
until an agency issues a finding of no significant impact, as provided 
in Sec.  1501.6 of this subchapter, or record of decision, as provided 
in Sec.  1505.2 of this subchapter, no action concerning the proposal 
may be taken that would:
    (1) Have an adverse environmental effect; or
    (2) Limit the choice of reasonable alternatives.
    (b) If an agency is considering an application from a non-Federal 
entity and is aware that the applicant is about to take an action 
within the agency's jurisdiction that would meet either of the criteria 
in paragraph (a) of this section, then the agency shall promptly notify 
the applicant that the agency will take appropriate action to ensure 
that the objectives and procedures of NEPA are achieved. This section 
does not preclude development by applicants of plans or designs or 
performance of other activities necessary to support an application for 
Federal, State, Tribal, or local permits or assistance. An agency 
considering a proposed action for Federal funding may authorize such 
activities, including, but not limited to, acquisition of interests in 
land (e.g., fee simple, rights-of-way, and conservation easements), 
purchase of long lead-time equipment, and purchase options made by 
applicants, if the agency determines that such activities would not 
limit the choice of reasonable alternatives and notifies the applicant 
that the agency retains discretion to select any reasonable alternative 
or the no action alternative regardless of any potential prior activity 
taken by the applicant prior to the conclusion of the NEPA process.
    (c) While work on a programmatic environmental review is in 
progress and the action is not covered by an existing programmatic 
review, agencies shall not

[[Page 49982]]

undertake in the interim any major Federal action covered by the 
program that may significantly affect the quality of the human 
environment unless such action:
    (1) Is justified independently of the program;
    (2) Is itself accompanied by an adequate environmental review; and
    (3) Will not prejudice the ultimate decision on the program. 
Interim action prejudices the ultimate decision on the program when it 
tends to determine subsequent development or limit alternatives.


Sec.  1506.2  Elimination of duplication with State, Tribal, and local 
procedures.

    (a) Federal agencies are authorized to cooperate with State, 
Tribal, and local agencies that are responsible for preparing 
environmental documents, including those prepared pursuant to section 
102(2)(G) of NEPA.
    (b) To the fullest extent practicable unless specifically 
prohibited by law, agencies shall cooperate with State, Tribal, and 
local agencies to reduce duplication between NEPA and State, Tribal, 
and local requirements, including through use of studies, analysis, and 
decisions developed by State, Tribal, or local agencies. Except for 
cases covered by paragraph (a) of this section, such cooperation shall 
include, to the fullest extent practicable:
    (1) Joint planning processes.
    (2) Joint environmental research and studies.
    (3) Joint public hearings (except where otherwise provided by 
statute).
    (4) Joint environmental assessments.
    (c) To the fullest extent practicable unless specifically 
prohibited by law, agencies shall cooperate with State, Tribal, and 
local agencies to reduce duplication between NEPA and comparable State, 
Tribal, and local requirements. Such cooperation shall include, to the 
fullest extent practicable, joint environmental impact statements. In 
such cases, one or more Federal agencies and one or more State, Tribal, 
or local agencies shall be joint lead agencies. Where State or Tribal 
laws or local ordinances have environmental impact statement or similar 
requirements in addition to but not in conflict with those in NEPA, 
Federal agencies may cooperate in fulfilling these requirements, as 
well as those of Federal laws, so that one document will comply with 
all applicable laws.
    (d) To better integrate environmental impact statements into State, 
Tribal, or local planning processes, environmental impact statements 
shall discuss any inconsistency of a proposed action with any approved 
State, Tribal, or local plan or law (whether or not federally 
sanctioned). Where an inconsistency exists, the statement should 
describe the extent to which the agency would reconcile its proposed 
action with the plan or law. While the statement should discuss any 
inconsistencies, NEPA does not require reconciliation.


Sec.  1506.3  Adoption.

    (a) Generally. An agency may adopt a draft or final environmental 
impact statement, environmental assessment, or portion thereof, or 
categorical exclusion determination, consistent with this section.
    (b) Environmental impact statements. An agency may adopt a draft or 
final environmental impact statement, or portion thereof, provided that 
the adopting agency conducts an independent review of the statement and 
concludes that it meets the standards for an adequate statement, 
pursuant to the regulations in this subchapter and the adopting 
agency's NEPA procedures.
    (1) If the actions covered by the original environmental impact 
statement and the proposed action are substantially the same, the 
adopting agency shall republish and file it as a final statement 
consistent with Sec.  1506.9 of this subchapter. If the actions are not 
substantially the same or the adopting agency determines that the 
statement requires supplementation, the adopting agency shall treat the 
statement as a draft, supplement or reevaluate it as necessary, and 
republish and file it, consistent with Sec.  1506.9 of this subchapter.
    (2) Notwithstanding paragraph (b)(1) of this section, if a 
cooperating agency does not issue a record of decision jointly or 
concurrently consistent with Sec.  1505.2 of this subchapter, a 
cooperating agency may issue a record of decision adopting the 
environmental impact statement of a lead agency without republication.
    (c) Environmental assessments. An agency may adopt an environmental 
assessment, or portion thereof, if the actions covered by the original 
environmental assessment and the proposed action are substantially the 
same, and the assessment meets the standards for an adequate 
environmental assessment under the regulations in this subchapter and 
the adopting agency's NEPA procedures. If the actions are not 
substantially the same or the adopting agency determines that the 
environmental assessment requires supplementation, the adopting agency 
may adopt the environmental assessment, and supplement or reevaluate it 
as necessary, in its finding of no significant impact and provide 
notice consistent with Sec.  1501.6 of this subchapter.
    (d) Categorical exclusion determinations. An agency may adopt 
another agency's determination that a categorical exclusion applies to 
a particular proposed action if the action covered by that 
determination and the adopting agency's proposed action are 
substantially the same.
    (1) The adopting agency shall document its adoption, including the 
determination that its proposed action is substantially the same as the 
action covered by the original categorical exclusion determination and 
that there are no extraordinary circumstances present that require the 
preparation of an environmental assessment or environmental impact 
statement.
    (2) The adopting agency shall publish its adoption determination on 
an agency website or otherwise make it publicly available.
    (e) Identification of certain circumstances. The adopting agency 
shall specify if one of the following circumstances is present:
    (1) The agency is adopting an environmental assessment or 
environmental impact statement that is not final within the agency that 
prepared it.
    (2) The action assessed in the environmental assessment or 
environmental impact statement is the subject of a referral under part 
1504 of this subchapter.
    (3) The environmental assessment or environmental impact 
statement's adequacy is the subject of a judicial action that is not 
final.


Sec.  1506.4  Combining documents.

    Agencies should combine, to the fullest extent practicable, any 
environmental document with any other agency document to reduce 
duplication and paperwork.


Sec.  1506.5  Agency responsibility for environmental documents.

    (a) The agency is responsible for the accuracy, scope (Sec.  
1501.3(b) of this subchapter), and content of environmental documents 
and shall ensure they are prepared with professional and scientific 
integrity, using reliable data and resources, regardless of whether 
they are prepared by the agency or a contractor under the supervision 
of the agency or by the applicant or project sponsor under procedures 
the agency adopts pursuant to section 107(f) of NEPA and Sec.  
1507.3(c)(1) of this subchapter. The agency shall exercise its 
independent judgment and briefly document its

[[Page 49983]]

determination that an environmental document meets the standards under 
NEPA, the regulations in this subchapter, and the agency's NEPA 
procedures.
    (b) An agency may require an applicant to submit environmental 
information for possible use by the agency in preparing an 
environmental document. An agency also may authorize a contractor to 
prepare an environmental assessment or environmental impact statement 
under the supervision of the agency and may authorize a contractor to 
draft a finding of no significant impact or record of decision, but the 
agency is responsible for its accuracy, scope, and contents.
    (1) The agency should assist the applicant by outlining the types 
of information required for the preparation of environmental documents. 
The agency shall provide guidance to the contractor and participate in 
and supervise the document's preparation.
    (2) The agency shall independently evaluate the information 
submitted and the environmental document and shall be responsible for 
their accuracy, scope, and contents, and document its evaluation in the 
environmental document.
    (3) The agency shall include in the environmental document the 
names and qualifications of the persons preparing environmental 
documents, and conducting the independent evaluation of any information 
submitted or environmental documents prepared by a contractor, such as 
in the list of preparers for environmental impact statements (Sec.  
1502.18 of this subchapter). It is the intent of this paragraph (b)(3) 
that acceptable work not be redone, but that it be verified by the 
agency.
    (4) The lead agency or cooperating agency, where appropriate, shall 
prepare a disclosure statement for the contractor's execution 
specifying that the contractor has no financial or other interest in 
the outcome of the action. Such statement need not include privileged 
or confidential trade secrets or other confidential business 
information.
    (5) Nothing in this section is intended to prohibit an agency from 
requesting any person, including the applicant, to submit information 
to it or to prohibit any person from submitting information to an 
agency for use in preparing environmental documents.


Sec.  1506.6  [Reserved]


Sec.  1506.7  Further guidance.

    (a) The Council may provide further guidance concerning NEPA and 
its procedures.
    (b) To the extent that Council guidance issued prior to [EFFECTIVE 
DATE OF THE FINAL RULE] is in conflict with this subchapter, the 
provisions of this subchapter apply.


Sec.  1506.8  Proposals for legislation.

    (a) When developing legislation, agencies shall integrate the NEPA 
process for proposals for legislation significantly affecting the 
quality of the human environment with the legislative process of the 
Congress. Technical drafting assistance does not by itself constitute a 
legislative proposal. Only the agency that has primary responsibility 
for the subject matter involved will prepare a legislative 
environmental impact statement.
    (b) A legislative environmental impact statement is the detailed 
statement required by law to be included in an agency's recommendation 
or report on a legislative proposal to Congress. A legislative 
environmental impact statement shall be considered part of the formal 
transmittal of a legislative proposal to Congress; however, it may be 
transmitted to Congress up to 30 days later to allow time for 
completion of an accurate statement that can serve as the basis for 
public and Congressional debate. The statement must be available in 
time for Congressional hearings and deliberations.
    (c) Preparation of a legislative environmental impact statement 
shall conform to the requirements of the regulations in this 
subchapter, except as follows:
    (1) There need not be a scoping process.
    (2) Agencies shall prepare the legislative statement in the same 
manner as a draft environmental impact statement and need not prepare a 
final statement unless any of the following conditions exist. In such 
cases, the agency shall prepare and publish the statements consistent 
with Sec. Sec.  1503.1 of this subchapter and 1506.11:
    (i) A Congressional committee with jurisdiction over the proposal 
has a rule requiring both draft and final environmental impact 
statements.
    (ii) The proposal results from a study process required by statute 
(such as those required by the Wild and Scenic Rivers Act (16 U.S.C. 
1271 et seq.)).
    (iii) Legislative approval is sought for Federal or federally 
assisted construction or other projects that the agency recommends be 
located at specific geographic locations. For proposals requiring an 
environmental impact statement for the acquisition of space by the 
General Services Administration, a draft statement shall accompany the 
Prospectus or the 11(b) Report of Building Project Surveys to the 
Congress, and a final statement shall be completed before site 
acquisition.
    (iv) The agency decides to prepare draft and final statements.
    (d) Comments on the legislative statement shall be given to the 
lead agency, which shall forward them along with its own responses to 
the Congressional committees with jurisdiction.


Sec.  1506.9  Filing requirements.

    (a) Agencies shall file environmental impact statements together 
with comments and responses with the Environmental Protection Agency, 
Office of Federal Activities, consistent with the Environmental 
Protection Agency's procedures.
    (b) Agencies shall file statements with the Environmental 
Protection Agency no earlier than they are also transmitted to 
participating agencies and made available to the public. The 
Environmental Protection Agency may issue guidelines to agencies to 
implement its responsibilities under this section and Sec.  1506.10.
    (c) Agencies shall notify the Environmental Protection Agency when 
they adopt an environmental impact statement consistent with Sec.  
1506.3(b).


Sec.  1506.10  Timing of agency action.

    (a) The Environmental Protection Agency shall publish a notice in 
the Federal Register each week of the environmental impact statements 
filed since its prior notice. The minimum time periods set forth in 
this section are calculated from the date of publication of this 
notice.
    (b) Unless otherwise provided by law, including statutory 
provisions for combining a final environmental impact statement and 
record of decision, Federal agencies shall not make or issue a record 
of decision under Sec.  1505.2 of this subchapter for the proposed 
action until the later of the following dates:
    (1) 90 days after publication of the notice described in paragraph 
(a) of this section for a draft environmental impact statement.
    (2) 30 days after publication of the notice described in paragraph 
(a) of this section for a final environmental impact statement.
    (c) An agency may make an exception to the rule on timing set forth 
in paragraph (b) of this section for a

[[Page 49984]]

proposed action in the following circumstances:
    (1) Some agencies have formally established administrative review 
processes (e.g., appeals, objections, protests), which may be initiated 
prior to or after filing and publication of the final environmental 
impact statement with the Environmental Protection Agency, that allow 
other agencies or the public to raise issues about a decision and make 
their views known. In such cases where a real opportunity exists to 
alter the decision, the agency may make and record the decision at the 
same time it publishes the environmental impact statement. This means 
that the period for administrative review of the decision and the 30-
day period set forth in paragraph (b)(2) of this section may run 
concurrently. In such cases, the environmental impact statement shall 
explain the timing and the public's right of administrative review and 
provide notification consistent with Sec.  1506.9; or
    (2) An agency engaged in rulemaking under the Administrative 
Procedure Act or other statute for the purpose of protecting the public 
health or safety may waive the time period in paragraph (b)(2) of this 
section, publish a decision on the final rule simultaneously with 
publication of the notice of the availability of the final 
environmental impact statement, and provide notification consistent 
with Sec.  1506.10, as described in paragraph (a) of this section.
    (d) If an agency files the final environmental impact statement 
within 90 days of the filing of the draft environmental impact 
statement with the Environmental Protection Agency, the minimum 30-day 
and 90-day periods may run concurrently. However, subject to paragraph 
(e) of this section, agencies shall allow at least 45 days for comments 
on draft statements.
    (e) The lead agency may extend the minimum periods in paragraph (b) 
of this section and provide notification consistent with Sec.  1506.10. 
Upon a showing by the lead agency of compelling reasons of national 
policy, the Environmental Protection Agency may reduce the minimum 
periods and, upon a showing by any other Federal agency of compelling 
reasons of national policy, also may extend the minimum periods, but 
only after consultation with the lead agency. The lead agency may 
modify the minimum periods when necessary to comply with other specific 
statutory requirements (Sec.  1507.3(d)(4) of this subchapter). Failure 
to file timely comments shall not be a sufficient reason for extending 
a period. If the lead agency does not concur with the extension of 
time, the Environmental Protection Agency may not extend it for more 
than 30 days. When the Environmental Protection Agency reduces or 
extends any period it shall notify the Council.


Sec.  1506.11  Emergencies.

    Where emergency circumstances make it necessary to take an action 
with significant effects without observing the provisions of the 
regulations in this subchapter, the Federal agency taking the action 
should consult with the Council about alternative arrangements for 
compliance with section 102(2)(C) of NEPA. Agencies and the Council 
will limit such arrangements to actions necessary to control the 
immediate impacts of the emergency. Alternative arrangements do not 
waive the requirement to comply with the statute, but establish an 
alternative means for NEPA compliance.


Sec.  1506.12  Innovative approaches to NEPA reviews.

    (a) The Council may authorize an innovative approach to NEPA 
compliance that allows an agency to comply with the Act following 
procedures modified from the requirements of the regulations in this 
subchapter, to facilitate sound and efficient environmental review for 
actions to address extreme environmental challenges consistent with 
section 101 of NEPA. Examples of extreme environmental challenges may 
relate to sea level rise, increased wildfire risk, or bolstering the 
resilience of infrastructure to increased disaster risk due to climate 
change; water scarcity; degraded water or air quality; disproportionate 
and adverse effects on communities with environmental justice concerns; 
imminent or reasonably foreseeable loss of historic, cultural, or 
Tribal resources; species loss; and impaired ecosystem health.
    (b) The Council may approve an innovative approach if it is 
consistent with this section, and such approval does not waive the 
requirement to comply with the statute, but establishes an alternative 
means for NEPA compliance.
    (c) An agency request for an innovative approach shall:
    (1) Identify each provision of this subchapter from which the 
agency seeks a modification and how the innovative approach the agency 
proposes to ensure compliance with NEPA;
    (2) Explain the extreme environmental challenge the approach would 
address, why the alternative means are needed to address the challenge, 
and how the alternative means would facilitate the sound and efficient 
environmental review; and
    (3) Consult with any potential cooperating agencies and include a 
summary of their comments.
    (d) The Council shall evaluate the agency's request within 60 days 
to determine if it meets the requirements in this section. The Council 
may:
    (1) Approve the request for modification;
    (2) Approve the request for modification with revisions; or
    (3) Deny the request for modification.
    (e) The Council shall publish on its website any request for 
modification that it has approved, approved with revisions, or denied.


Sec.  1506.13  Effective date.

    The regulations in this subchapter apply to any NEPA process begun 
after [EFFECTIVE DATE OF THE FINAL RULE]. An agency may apply the 
regulations in this subchapter to ongoing activities and environmental 
documents begun before [EFFECTIVE DATE OF THE FINAL RULE].

PART 1507--AGENCY COMPLIANCE


Sec.  1507.1  Compliance.

    All agencies of the Federal Government shall comply with the 
regulations in this subchapter. It is the intent of these regulations 
to allow each agency flexibility in adapting its implementing 
procedures authorized by Sec.  1507.3 to the requirements of other 
applicable laws.


Sec.  1507.2  Agency capability to comply.

    Each agency shall be capable (in terms of personnel and other 
resources) of complying with the requirements of NEPA and the 
regulations in this subchapter. Such compliance may include use of the 
resources of other agencies, applicants, and other participants in the 
NEPA process, but the agency using the resources shall itself have 
sufficient capability to evaluate what others do for it and account for 
the contributions of others. Agencies shall:
    (a) Agencies shall designate a senior agency official to be 
responsible for overall review of agency NEPA compliance, including 
resolving implementation issues, and a Chief Public Engagement Officer 
to be responsible for facilitating community engagement across the 
agency and, where appropriate, the provision of technical assistance to 
communities.
    (b) Fulfill the requirements of section 102(2)(A) of NEPA to 
utilize a systematic, interdisciplinary approach that will ensure the 
integrated use of the

[[Page 49985]]

natural and social sciences and the environmental design arts in 
planning and in decision making that may have an impact on the human 
environment.
    (c) Identify methods and procedures required by section 102(2)(B) 
of NEPA to ensure that presently unquantified environmental amenities 
and values may be given appropriate consideration.
    (d) Prepare adequate environmental impact statements pursuant to 
section 102(2)(C) of NEPA and cooperate on the development of 
statements in the areas where the agency has jurisdiction by law or 
special expertise or is authorized to develop and enforce environmental 
standards.
    (e) Ensure environmental documents are prepared with professional 
integrity, including scientific integrity, consistent with section 
102(2)(D) of NEPA.
    (f) Make use of reliable data and resources in carrying out their 
responsibilities under NEPA, consistent with section 102(2)(E) of NEPA.
    (g) Study, develop, and describe technically and economically 
feasible alternatives, consistent with section 102(2)(F) of NEPA.
    (h) Study, develop, and describe alternatives to recommended 
courses of action in any proposal that involves unresolved conflicts 
concerning alternative uses of available resources, consistent with 
section 102(2)(H) of NEPA.
    (i) Comply with the requirement of section 102(2)(K) of NEPA that 
the agency initiate and utilize ecological information in the planning 
and development of resource-oriented projects.
    (j) Fulfill the requirements of sections 102(2)(I), 102(2)(J), and 
102(2)(L), of NEPA, and Executive Order 11514, Protection and 
Enhancement of Environmental Quality, section 2, as amended by 
Executive Order 11991, Relating to Protection and Enhancement of 
Environmental Quality.


Sec.  1507.3  Agency NEPA procedures.

    (a) The Council has determined that the categorical exclusions 
contained in agency NEPA procedures as of [EFFECTIVE DATE OF THE FINAL 
RULE] are consistent with this subchapter.
    (b) No more than 12 months after [EFFECTIVE DATE OF THE FINAL 
RULE], or 9 months after the establishment of an agency, whichever 
comes later, each agency shall develop or revise, as necessary, 
proposed procedures to implement the regulations in this subchapter, 
facilitate efficient decision making, and ensure that agencies make 
decisions in accordance with the policies and requirements of the Act. 
When the agency is a department, it may be efficient for major subunits 
(with the consent of the department) to adopt their own procedures.
    (1) Each agency shall consult with the Council while developing or 
revising its proposed procedures and before publishing them in the 
Federal Register for comment. Agencies with similar programs should 
consult with each other and the Council to coordinate their procedures, 
especially for programs requesting similar information from applicants.
    (2) Agencies shall provide an opportunity for public review and 
review by the Council for conformity with the Act and the regulations 
in this subchapter before issuing their final procedures. The Council 
shall complete its review within 30 days of the receipt of the proposed 
final procedures. Once in effect, agencies shall publish their NEPA 
procedures and ensure that they are readily available to the public. 
Agencies shall continue to review their policies and procedures, in 
consultation with the Council, to revise them as necessary to ensure 
full compliance with the purposes and provisions of the Act.
    (3) The issuance or update of agency procedures is not subject to 
NEPA review under this subchapter.
    (c) Agency procedures shall:
    (1) Designate the major decision points for the agency's programs 
and actions subject to NEPA, ensuring that the NEPA process begins at 
the earliest reasonable time, consistent with Sec.  1501.2 of this 
subchapter, and aligns with the corresponding decision points;
    (2) Require that relevant environmental documents, comments, and 
responses be part of the record in rulemaking and adjudicatory 
proceedings;
    (3) Integrate the environmental review into the decision-making 
process by requiring that relevant environmental documents, comments, 
and responses accompany the proposal through existing agency review 
processes so that decision makers use them in making decisions;
    (4) Require that the alternatives considered by the decision maker 
are encompassed by the range of alternatives discussed in the relevant 
environmental documents and that the decision maker consider the 
alternatives described in the environmental documents. If another 
decision document accompanies the relevant environmental documents to 
the decision maker, agencies are encouraged to make available to the 
public before the decision is made any part of that document that 
relates to the comparison of alternatives;
    (5) Require the combination of environmental documents with other 
agency documents to facilitate sound and efficient decision making and 
avoid duplication, where consistent with applicable statutory 
requirements;
    (6) Include those procedures required by Sec. Sec.  1501.2(b)(4) 
(assistance to applicants);
    (7) Include specific criteria for and identification of those 
typical classes of action that normally:
    (i) Require environmental impact statements; and
    (ii) Require environmental assessments but not necessarily 
environmental impact statements;
    (8) Establish categorical exclusions and identify extraordinary 
circumstances. When establishing new or revising existing categorical 
exclusions, agencies shall:
    (i) Identify when documentation of a determination that a 
categorical exclusion applies to a proposed action is required;
    (ii) Substantiate the proposed new or revised categorical exclusion 
with sufficient information to conclude that the category of actions 
does not have a significant effect, individually or in the aggregate, 
on the human environment and provide this substantiation in a written 
record that is made publicly available as part of the notice and 
comment process (Sec.  1507.3(b)(1) and (2)); and
    (iii) Describe how the agency will consider extraordinary 
circumstances in determining whether additional analysis in an 
environmental assessment or environmental impact statement is required;
    (9) Include a process for reviewing the agency's categorical 
exclusions at least every 10 years;
    (10) Include a process for introducing a supplement to an 
environmental assessment or environmental impact statement into its 
formal administrative record, if such a record exists;
    (11) Explain where interested persons can get information or status 
reports on environmental impact statements, environmental assessments, 
and other elements of the NEPA process; and
    (12) Where applicable, include procedures to allow a project 
sponsor to prepare environmental assessments and environmental impact 
statements under the agency's supervision consistent with Sec.  1506.5 
of this subchapter.
    (d) Agency procedures also may:
    (1) Identify activities or decisions that are not subject to NEPA;
    (2) Include processes for consideration of emergency actions that 
would not result in significant effects;

[[Page 49986]]

    (3) Include specific criteria for providing limited exceptions to 
the provisions of the regulations in this subchapter for classified 
proposals. These are proposed actions that are specifically authorized 
under criteria established by an Executive order or statute to be kept 
secret in the interest of national defense or foreign policy and are in 
fact properly classified pursuant to such Executive order or statute. 
Agencies may safeguard and restrict from public dissemination 
environmental assessments and environmental impact statements that 
address classified proposals in accordance with agencies' own 
regulations applicable to classified information. Agencies should 
organize these documents so that classified portions are included as 
annexes, so that the agencies can make the unclassified portions 
available to the public; and
    (4) Provide for periods of time other than those presented in Sec.  
1506.10 of this subchapter when necessary to comply with other specific 
statutory requirements, including requirements of lead or cooperating 
agencies.


Sec.  1507.4  Agency NEPA program information.

    (a) To allow agencies and the public to efficiently and effectively 
access information about NEPA reviews, agencies shall provide for 
agency websites or other information technology tools to make available 
documents, relevant notices, and other relevant information for use by 
agencies, applicants, and interested persons. The website or other such 
means of publication shall include the agency's NEPA procedures, 
including those of subunits, and a list of environmental assessments 
and environmental impact statements that are in development and 
complete. As appropriate, agencies also should include:
    (1) Agency planning and other documents that guide agency 
management and provide for public involvement in agency planning 
processes;
    (2) Environmental documents;
    (3) Agency policy documents, orders, terminology, and explanatory 
materials regarding agency decision-making processes;
    (4) Agency planning program information, plans, and planning tools; 
and
    (5) A database searchable by geographic information, document 
status, document type, and project type.
    (b) Agencies shall provide for efficient and effective interagency 
coordination of their environmental program websites and other 
information technology tools, such as use of shared databases or 
application programming interfaces, in their implementation of NEPA and 
related authorities.

PART 1508--DEFINITIONS


Sec.  1508.1  Definitions.

    The following definitions apply to the regulations in this 
subchapter. Federal agencies shall use these terms uniformly throughout 
the Federal Government.
    (a) Act or NEPA means the National Environmental Policy Act, as 
amended (42 U.S.C. 4321, et seq.).
    (b) Affecting means will or may have an effect on.
    (c) Authorization means any license, permit, approval, finding, 
determination, or other administrative decision issued by an agency 
that is required or authorized under Federal law in order to implement 
a proposed action.
    (d) Categorical exclusion means a category of actions that an 
agency has determined, in its agency NEPA procedures (Sec.  1507.3 of 
this subchapter) or pursuant to Sec.  1501.4(c) of this subchapter, 
normally does not have a significant effect on the human environment.
    (e) Cooperating agency means any Federal, State, Tribal, or local 
agency with jurisdiction by law or special expertise with respect to 
any environmental impact involved in a proposal that has been 
designated by the lead agency.
    (f) Council means the Council on Environmental Quality established 
by title II of the Act.
    (g) Effects or impacts means changes to the human environment from 
the proposed action or alternatives that are reasonably foreseeable and 
include the following:
    (1) Direct effects, which are caused by the action and occur at the 
same time and place.
    (2) Indirect effects, which are caused by the action and are later 
in time or farther removed in distance, but are still reasonably 
foreseeable. Indirect effects may include growth-inducing effects and 
other effects related to induced changes in the pattern of land use, 
population density or growth rate, and related effects on air and water 
and other natural systems, including ecosystems.
    (3) Cumulative effects, which are effects on the environment that 
result from the incremental effects of the action when added to the 
effects of other past, present, and reasonably foreseeable actions 
regardless of what agency (Federal or non-Federal) or person undertakes 
such other actions. Cumulative effects can result from actions with 
individually minor but collectively significant effects taking place 
over a period of time.
    (4) Effects include ecological (such as the effects on natural 
resources and on the components, structures, and functioning of 
affected ecosystems), aesthetic, historic, cultural, economic, social, 
or health, such as disproportionate and adverse effects on communities 
with environmental justice concerns, whether direct, indirect, or 
cumulative. Effects also include climate change-related effects, 
including the contribution of a proposed action and its alternatives to 
climate change, and the reasonably foreseeable effects of climate 
change on the proposed action and its alternatives. Effects may also 
include those resulting from actions which may have both beneficial and 
detrimental effects, even if on balance the agency believes that the 
effects will be beneficial.
    (h) Environmental assessment means a concise public document, for 
which a Federal agency is responsible, for an action that is not likely 
to have a significant effect or for which the significance of the 
effects is unknown (Sec.  1501.5 of this subchapter), that is used to 
support an agency's determination of whether to prepare an 
environmental impact statement (part 1502 of this subchapter) or a 
finding of no significant impact (Sec.  1501.6 of this subchapter).
    (i) Environmental document means an environmental assessment, 
environmental impact statement, documented categorical exclusion 
determination, finding of no significant impact, record of decision, or 
notice of intent.
    (j) Environmental impact statement means a detailed written 
statement that is required by section 102(2)(C) of NEPA.
    (k) Environmental justice means the just treatment and meaningful 
involvement of all people, regardless of income, race, color, national 
origin, Tribal affiliation, or disability, in agency decision making 
and other Federal activities that affect human health and the 
environment so that people:
    (1) Are fully protected from disproportionate and adverse human 
health and environmental effects (including risks) and hazards, 
including those related to climate change, the cumulative impacts of 
environmental and other burdens, and the legacy of racism or other 
structural or systemic barriers; and
    (2) Have equitable access to a healthy, sustainable, and resilient 
environment

[[Page 49987]]

in which to live, play, work, learn, grow, worship, and engage in 
cultural and subsistence practices.
    (l) Environmentally preferable alternative means the alternative or 
alternatives that will best promote the national environmental policy 
as expressed in section 101 of NEPA.
    (m) Extraordinary circumstances are factors or circumstances that 
indicate a normally categorically excluded action may have a 
significant environmental effect. Examples of extraordinary 
circumstances include potential substantial effects on sensitive 
environmental resources, potential disproportionate and adverse effects 
on communities with environmental justice concerns, potential 
substantial effects associated with climate change, and potential 
adverse effects on historic properties or cultural resources.
    (n) Federal agency means all agencies of the Federal Government. It 
does not mean the Congress, the Judiciary, or the President, including 
the performance of staff functions for the President in his Executive 
Office. For the purposes of the regulations in this subchapter, Federal 
agency also includes States, units of general local government, and 
Tribal governments assuming NEPA responsibilities from a Federal agency 
pursuant to statute.
    (o) Finding of no significant impact means a document by a Federal 
agency briefly presenting the agency's determination that and reasons 
why an action, not otherwise categorically excluded (Sec.  1501.4 of 
this subchapter), will not have a significant effect on the human 
environment and for which an environmental impact statement therefore 
will not be prepared.
    (p) Human environment or environment means comprehensively the 
natural and physical environment and the relationship of present and 
future generations with that environment. (See also the definition of 
``effects'' in paragraph (g) of this section.)
    (q) Joint lead agency means a Federal, State, Tribal, or local 
agency designated pursuant to Sec.  1501.7(c) that shares the 
responsibilities of the lead agency for preparing the environmental 
impact statement or environmental assessment.
    (r) Jurisdiction by law means agency authority to approve, veto, or 
finance all or part of the proposal.
    (s) Lead agency means the Federal agency that proposes the agency 
action or is designated pursuant to Sec.  1501.7(c) for preparing or 
having primary responsibility for preparing the environmental impact 
statement or environmental assessment.
    (t) Legislation means a bill or legislative proposal to Congress 
developed by a Federal agency, but does not include requests for 
appropriations or legislation recommended by the President.
    (u) Major Federal action or action means an action that the agency 
carrying out such action determines is subject to substantial Federal 
control and responsibility.
    (1) Major Federal actions generally include:
    (i) Granting authorizations, including permits, licenses, rights-
of-way, or other authorizations.
    (ii) Adoption of official policy, such as rules, regulations, and 
interpretations adopted under the Administrative Procedure Act, 5 
U.S.C. 551 et seq., or other statutes; implementation of treaties and 
international conventions or agreements, including those implemented 
pursuant to statute or regulation; formal documents establishing an 
agency's policies that will result in or substantially alter agency 
programs.
    (iii) Adoption of formal plans, such as official documents prepared 
or approved by Federal agencies, which prescribe alternative uses of 
Federal resources, upon which future agency actions will be based.
    (iv) Adoption of programs, such as a group of concerted actions to 
implement a specific policy or plan; systematic and related agency 
decisions allocating agency resources to implement a specific statutory 
program or executive directive.
    (v) Carrying out specific projects, such as construction or 
management activities.
    (vi) Providing financial assistance, including through grants, 
cooperative agreements, loans, loan guarantees, or other forms of 
financial assistance, where the agency has the authority to deny in 
whole or in part the assistance due environmental effects, impose 
conditions on the receipt of the financial assistance to address 
environmental effects, or otherwise has sufficient control and 
responsibility over the subsequent use of the financial assistance or 
the effects of the activity for which the agency is providing the 
financial assistance.
    (2) Major Federal actions do not include the following:
    (i) Non-Federal actions:
    (A) With no or minimal Federal funding; or
    (B) With no or minimal Federal involvement where the Federal agency 
cannot control the outcome of the project;
    (ii) Funding assistance solely in the form of general revenue 
sharing funds that do not provide Federal agency compliance or 
enforcement responsibility over the subsequent use of such funds;
    (iii) Loans, loan guarantees, or other forms of financial 
assistance where a Federal agency does not exercise sufficient control 
and responsibility over the subsequent use of such financial assistance 
or the effects of the action;
    (iv) Business loan guarantees provided by the Small Business 
Administration pursuant to section 7(a) or (b) and of the Small 
Business Act (15 U.S.C. 636(a) and (b)), or title V of the Small 
Business Investment Act of 1958 (15 U.S.C. 695 through 697g);
    (v) Judicial or administrative civil or criminal enforcement 
actions;
    (vi) Extraterritorial activities or decisions, which means agency 
activities or decisions with effects located entirely outside of the 
jurisdiction of the United States;
    (vii) Activities or decisions that are non-discretionary and made 
in accordance with the agency's statutory authority;
    (viii) Activities or decisions that are not a final agency action 
within the meaning of such term under the Administrative Procedure Act; 
and
    (ix) Activities or decisions for projects approved by a Tribal 
Nation that occur on or involve land held in trust or restricted status 
by the United States for the benefit of that Tribal Nation or by the 
Tribal Nation when such activities or decisions involve no Federal 
funding or other Federal involvement.
    (v) Matter includes for purposes of part 1504 of this subchapter:
    (1) With respect to the Environmental Protection Agency, any 
proposed legislation, project, action, or regulation as those terms are 
used in section 309(a) of the Clean Air Act (42 U.S.C. 7609).
    (2) With respect to all other agencies, any proposed major Federal 
action to which section 102(2)(C) of NEPA applies.
    (w) Mitigation means measures that avoid, minimize, or compensate 
for effects caused by a proposed action or alternatives as described in 
an environmental document or record of decision and that have a 
connection to those effects. Mitigation includes, in general order of 
priority:
    (1) Avoiding the effect altogether by not taking a certain action 
or parts of an action.
    (2) Minimizing effects by limiting the degree or magnitude of the 
action and its implementation.

[[Page 49988]]

    (3) Rectifying the effect by repairing, rehabilitating, or 
restoring the affected environment.
    (4) Reducing or eliminating the effect over time by preservation 
and maintenance operations during the life of the action.
    (5) Compensating for the effect by replacing or providing 
substitute resources or environments.
    (x) NEPA process means all measures necessary for compliance with 
the requirements of section 2 and title I of NEPA.
    (y) Notice of intent means a public notice that an agency will 
prepare and consider an environmental impact statement or environmental 
assessment, as applicable.
    (z) Page means 500 words and does not include citations, 
explanatory maps, diagrams, graphs, tables, and other means of 
graphically displaying quantitative or geospatial information.
    (aa) Participating agency means a Federal, State, Tribal, or local 
agency participating in an environmental review or authorization of an 
action.
    (bb) Participating Federal agency means a Federal agency 
participating in an environmental review or authorization of an action.
    (cc) Programmatic environmental document means an environmental 
impact statement or environmental assessment analyzing all or some of 
the environmental effects of a policy, program, plan, or group of 
related actions.
    (dd) Proposal means a proposed action at a stage when an agency has 
a goal, is actively preparing to make a decision on one or more 
alternative means of accomplishing that goal, and can meaningfully 
evaluate its effects. A proposal may exist in fact as well as by agency 
declaration that one exists.
    (ee) Publish and publication mean methods found by the agency to 
efficiently and effectively make environmental documents and 
information available for review by interested persons, including 
electronic publication, and adopted by agency NEPA procedures pursuant 
to Sec.  1507.3 of this subchapter.
    (ff) Reasonable alternatives means a reasonable range of 
alternatives that are technically and economically feasible, and meet 
the purpose and need for the proposed action.
    (gg) Reasonably foreseeable means sufficiently likely to occur such 
that a person of ordinary prudence would take it into account in 
reaching a decision.
    (hh) Referring agency means the Federal agency that has referred 
any matter to the Council after a determination that the matter is 
unsatisfactory from the standpoint of public health or welfare or 
environmental quality.
    (ii) Scope consists of the range and breadth of actions, 
alternatives, and effects to be considered in an environmental impact 
statement or environmental assessment.
    (jj) Senior agency official means an official of assistant 
secretary rank or higher (or equivalent) that is designated for overall 
agency NEPA compliance, including resolving implementation issues.
    (kk) Significant effects means adverse effects that an agency has 
identified as significant based on the criteria in Sec.  1501.3(d) of 
this subchapter.
    (ll) Special expertise means statutory responsibility, agency 
mission, or related program experience.
    (mm) Tiering refers to the process described in Sec.  1501.11 of 
this subchapter.


Sec.  1508.2  [Reserved]

[FR Doc. 2023-15405 Filed 7-28-23; 8:45 am]
BILLING CODE 3325-F3-P

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