[Federal Register Volume 69, Number 130 (Thursday, July 8, 2004)]
[Notices]
[Pages 41299-41309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15442]


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NATIONAL CAPITAL PLANNING COMMISSION


Adoption of Final Environmental and Historic Preservation 
Policies and Procedures

AGENCY: National Capital Planning Commission.

ACTION: Announcement of the adoption of Final Environmental and 
Historic Preservation Policies and Procedures.

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    Authority: National Environmental Policy Act and National 
Historic Preservation Act.

SUMMARY: On April 1, 2004, the National Capital Planning Commission 
adopted its updated and revised Environmental and Historic Preservation 
Policies and Procedures. The Policies and Procedures were originally 
adopted on September 13, 1979 and amended on September 3, 1981, October 
21, 1982. The revised policies adopted on April 1, 2004 represent the 
first wholesale revisions and updating of the policies in over twenty 
years.
    A draft of the revised Policies and Procedures was originally 
published in the Federal Register for public comment on September 25, 
2000. Following the receipt and consideration of comments, a revised 
draft was presented during an information presentation on the draft 
policies and procedures at the February 5, 2004 Commission meeting. 
Copies of the revised draft were made available for review on NCPC's 
Web site and upon request on December 29, 2003.
    In drafting the revised policies and procedures, NCPC consulted 
with the Council on Environmental Quality (CEQ), the Advisory Council 
on Historic Preservation, and took into consideration valuable input 
from members of the public who provided testimony and written comments 
early in the review process. In addition, NCPC considered the 
recommendations of the CEQ's September 2003 NEPA Task Force report 
``Modernizing NEPA Implementation.''
    The revised and updated policies and procedures update and clarify 
NCPC's existing environmental and historic preservation policies and 
procedures in the following significant areas: (1) Making more explicit 
the levels of compliance with the National Environmental Policy Act and 
Section 106 of the National Historic Preservation Act required for each 
stage of NCPC's review of a project or master plan; (2) requiring a 
clearly defined NEPA scoping process; (3) expanding the public 
participation requirements during compliance with NEPA and Section 106; 
(4) integrating more closely the NEPA and Section 106 compliance 
processes; and (5) updating and revising NCPC's list of categorical 
exclusions under NEPA.

DATES: The Final Environmental and Historic Preservation Policies and 
Procedures were adopted on April 1, 2004.

ADDRESSES: Copies of the final Environmental and Historic Preservation 
Policies and Procedures can be requested at NCPC's offices at 401 9th 
Street, NW., Suite 500, Washington, DC 20009.

FOR FURTHER INFORMATION CONTACT: Copies of the Policies and Procedures 
can be obtained at NCPC's offices and Web site, www.ncpc.gov, or by 
contacting Mr. Eugene Keller, NCPC's Environmental Officer at 202-482-
7200 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The polices and procedures as adopted on 
September 13, 1979 and amended on September 3, 1981, October 21, 1982, 
and April 1, 2004, are as follows (excluding Appendices, which may be 
obtained directly from NCPC:

Section 1. Purpose

    The National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 
4321, et seq., requires federal agencies to carefully consider 
environmental impacts in their decisions. All federal agencies must 
direct, to the fullest extent possible, their policies, plans, and 
programs to protect and enhance environmental quality. These procedures 
adopt and supplement the Council on Environmental Quality's (CEQ) 
regulations for implementing the procedural provisions of NEPA and 
describe the way the National Capital Planning Commission, beginning at 
an early point in its decision making process, considers the 
environmental and historic aspects of proposed actions that it may 
review and approve. The Commission's goals are to avoid or minimize 
adverse environmental consequences and enhance its decision processes 
based on a better understanding of environmental and historic resources 
impacts. In addition, these procedures provide guidance for early 
implementation of Section 106 of the National Historic Preservation Act 
(NHPA) in conjunction with NEPA.
    The policy and procedures serve three primary functions. First, the 
National Capital Planning Commission must meet the requirements of NEPA 
for projects the Commission sponsors or co-sponsors as major federal 
actions that may significantly affect the environment. Second, the 
Commission must adhere to and meet the objectives of NHPA and its 
Section 106 process

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when the Commission is the sole federal agency or acting in a specific 
approval authority that will constitute a federal undertaking subject 
to the Section 106 process. Third, the procedures provide guidance to 
other federal agencies by outlining the required documentation that 
must accompany each project or master plan submission to the 
Commission, and which will be acted upon in accordance with the 
Commission's authority.
    In addition to NEPA and NHPA, the Commission will consider other 
environmental mandates during its decision making process including but 
not limited to:

1. Executive Order 12898, Environmental Justice
2. Clean Air Act, as amended
3. Endangered Species Act, as amended
4. Resource Conservation and Recovery Act
5. Executive Order 11988, Floodplain Management
6. Executive Order 11990, Protection of Wetlands
7. Federal Communications Commission Guidelines for Evaluating the 
Environmental Effects of Radiofrequency Emissions.

    With regard to NHPA, these procedures require all submitted 
projects and plans to provide relevant information about conformance 
with NHPA as required by Section 106 of the Act. The applicant must 
submit documentation indicating compliance with the Section 106 
process. However, the Section 106 compliance documentation may be 
combined and should be coordinated with NEPA documents when possible. 
Submission of Section 106 documentation is required regardless of the 
status of NEPA compliance. See Sections 4, 5, 7, and 8 of the 
procedures and Appendices A and B for specifics.

Section 2. Explanation of Abbreviations and Terms

    ``Advisory Council on Historic Preservation or Advisory Council'' 
refers to an independent federal agency that was established by NHPA in 
1966 and provides a forum for influencing federal activities, programs, 
and policies as they affect historic resources.
    ``Adverse Effect'' refers to a determination that an undertaking 
may alter, directly or indirectly, any of the characteristics of a 
historic property that qualify the property for the National Register 
in a manner that would diminish the integrity of the property's 
location, design, setting, materials, workmanship, feeling, or 
association. Consideration shall be given to all qualifying 
characteristics of a historic property, including those that may have 
been identified subsequent to the original evaluation of the property's 
eligibility for the National Register. Adverse effects may include 
reasonably foreseeable effects caused by the undertaking that may occur 
later in time, are distant by location, or may be cumulative.
    ``Categorical Exclusion'' (CX) means a category of actions that 
have been found by the Commission, in accordance with 40 CFR 1507.3, to 
not require an Environmental Assessment or an Environmental Impact 
Statement based on the lack of significant individual or cumulative 
environmental effects of the actions, absent extraordinary 
circumstances.
    ``CEQ'' refers to the Council on Environmental Quality.
    ``Commission'' refers to the National Capital Planning Commission, 
which was created by the Planning Act.
    ``Compelling reason'' refers to the situation of taking historic 
properties into limited account during the planning of a project which 
responds to a disaster or emergency declared by the President, Governor 
of a State, or local government official that responds to immediate 
threats to life or property, and that the scope and timing of the 
planning steps are not phased to reflect the agency official's 
consideration of project alternatives in the NEPA process and that the 
decision expressed is commensurate with the assessment of other 
environmental factors.
    ``Comprehensive Plan'' refers to the Comprehensive Plan for the 
National Capital, which was prepared and adopted pursuant to the 
Planning Act.
    ``Cooperating agency'' means any federal agency other than a lead 
agency which has jurisdiction by law or special expertise with respect 
to any environmental impact involved in a proposal (or a reasonable 
alternative) for legislation or other major Federal action 
significantly affecting the quality of the human environment. A State 
or local agency of similar qualifications or, when the effects are on a 
reservation, an Indian Tribe, may by agreement with the lead agency 
become a cooperating agency.
    ``Council'' refers to the Council of the District of Columbia, as 
defined in Section 103 of the Home Rule Act.
    ``Environmental Impact Statement'' (EIS) is a detailed written 
statement as required by Section 102(2)(C) of NEPA.
    ``Environmental Assessment'' (EA) is a document that briefly 
discusses the environmental consequences of a proposed action and 
alternatives prepared for the purposes set forth in 40 CFR 1508.9.
    ``Environs'' refers to the territory surrounding the District of 
Columbia within the National Capital Region as defined in 40 U.S.C. 
8702.
    ``EPA'' refers to the United States Environmental Protection 
Agency.
    ``Executive Director'' refers to the director employed by the 
Commission pursuant to Section 2(c) of the Planning Act.
    ``Finding of No Significant Impact'' (FONSI) refers to a document 
by a federal agency that briefly presents the reasons why an action, 
not otherwise excluded, will not significantly affect the environment. 
It shall include the EA or a summary of it.
    ``Home Rule Act'' refers to the District of Columbia Self-
Government and Governmental Reorganization Act (December 24, 1973, 87 
Stat. 774).
    ``Historic property'' refers to any prehistoric or historic 
district, site, building, structure, or object included in, or eligible 
for inclusion in, the National Register of Historic Places maintained 
by the Secretary of the Interior. This term includes artifacts, 
records, and remains that are related to and located within such 
properties. The term includes properties of traditional religious and 
cultural importance to an Indian tribe or Native Hawaiian organization 
and that meet the National Register criteria.
    ``Mayor'' refers to the Mayor of the District of Columbia, as 
defined in Section 103 of the Home Rule Act.
    ``Memorandum of Agreement'' refers to the document that records the 
terms and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    ``National Capital'' refers to the District of Columbia and 
territory owned by the United States within the environs.
    ``National Historic Landmark'' refers to a historic property that 
the Secretary of the Interior has designated a National Historic 
Landmark.
    ``National Register of Historic Places'' refers to the nation's 
official list of cultural resources worthy or preservation. Authorized 
under the National Historic Preservation Act of 1966, the National 
Register is part of national program to coordinate and support public 
and private efforts to identify, evaluate, and protect historic and 
archaeological resources.
    ``NEPA'' refers to the National Environmental Policy Act, as 
amended (42 U.S.C. 4321, et seq.).
    ``NEPA document'' refers to a Categorical Exclusion determination, 
an Environmental Assessment, an

[[Page 41301]]

Environmental Impact Statement, or any other environmental document 
identified in CEQ NEPA Regulations, 40 CFR 1508.10.
    ``Newly acquired site involving a project'' refers to any land area 
with boundary limits that is proposed to be improved upon from an 
undeveloped or un-built condition, including but not limited to, 
building construction or other built structure with or without related 
site improvements, or site development, such as grading, any landform 
modification, landscaping, street, or road extensions.
    ``NHPA'' refers to the National Historic Preservation Act, (Pub. L. 
89-665 as amended).
    ``Planning Act'' refers to the National Capital Planning Act of 
1952, as amended (40 U.S.C. 8721 et seq.).
    ``Programmatic Agreement'' refers to a document that governs the 
implementation of a particular program of the resolution of adverse 
effects from certain complex project situations or multiple 
undertakings where historic properties are involves.
    ``Protect confidentiality concerns of affected parties'' refers to 
the need to protect limited sources of information pertaining to 
historic or archaeological resources related to their location, 
quality, quantity, disposition or other important aspect, which may 
jeopardize their existence and importance as a Section 106 resource, or 
other properties that meet the National Register criteria.
    ``Record of Decision'' (ROD) refers to a concise public record of 
an agency's decision in cases requiring EISs that is prepared in 
accordance with 40 CFR 1505.2.
    ``Redevelopment Act'' refers to the District of Columbia 
Redevelopment Act of 1945, as amended.
    ``Region'' refers to the National Capital Region as defined in 
Section 1(b) of the Planning Act.
    ``Section 106 consultation'' refers to the process of seeking, 
discussing, and considering the views of other participants, and, where 
feasible, seeking agreement with them regarding matters arising in the 
Section 106 process. The Secretary's ``Standards and Guidelines for 
Federal Agency Preservation Programs pursuant to the National Historic 
Preservation Act'' provide further guidance on consultation.
    ``Section 106 process'' refers to Section 106 of the NHPA as 
implemented by the Advisory Council's Regulations, 36 CFR, Part 800 -- 
Protection of Historic Properties.
    ``Site Proposal'' refers to the geographical location of a planned 
action.
    ``State Historic Preservation Officer''(SHPO) refers to the 
official appointed or designated, pursuant to section 101(b)(1) of 
NHPA, to administer the state historic preservation program or a 
representative designated to act for the State Historic Preservation 
Officer.
    ``Undertaking'' means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a federal 
agency, including those carried out by or on behalf of a federal 
agency; those carried out with federal financial assistance; those 
requiring a federal permit, license or approval; and those subject to 
state or local regulation administered pursuant to a delegation or 
approval by a federal agency.
    ``Zoning Act'' refers to the Act of June 20, 1938, 52 Stat. 797, as 
amended.
    ``Zoning Commission'' refers to the Zoning Commission created by 
Section 1 of the Act of March 1, 1920, 41 Stat. 500, as amended.
    ``Zoning Regulations'' refers to the regulations, including the 
maps, and amendments thereto, promulgated by the Zoning Commission 
pursuant to the Zoning Act.

Section 3. Policy

    In its planning and decision making, the Commission will use all 
practicable means and measures to further the National Environmental 
Policy set forth in Section 101 of NEPA and the Section 106 process of 
NHPA. To the maximum extent practicable, the Commission will ensure 
that its actions protect and, where possible, improve the quality of 
the human environment including the built and sociocultural 
environments of the National Capital Region. This effort will improve 
and coordinate the federal plans, functions, programs, and resources to 
carry out both the policy set forth in NEPA and the purposes of the 
Planning Act, the Zoning Act, and other statutes granting the 
Commission a planning and regulatory role.
    The Executive Director, in conformance with this policy, will use 
the NEPA review process prescribed in the CEQ regulations as a 
practical planning procedure, and integrate the NEPA review process and 
the Section 106 processes into decision making in an efficient manner. 
The Executive Director will seek to avoid and minimize adverse effects 
to historic properties and to inform the Commission and the public of 
significant environmental impacts and reasonable alternatives that 
would avoid or minimize adverse impacts or enhance the quality of the 
human environment. These efforts will be initiated at the earliest 
possible stage in planning any Commission-sponsored action. The 
Commission will ensure that it has reviewed and fully understood the 
environmental and historic impacts of requested action decisions before 
making relevant decisions.
    Moreover, it is the policy of the Commission that in those limited 
circumstances where applicable, the Commission shall adhere to the 
provisions of Section 110(d), (e), and (f) of the NHPA and, consistent 
with the Commission's mission and mandates, shall carry out programs 
and projects (including those under which any federal assistance is 
provided or any federal license, permit, or other approval is required) 
in accordance with the purposes of the NHPA and give consideration to 
programs and projects which will further the purposes of the NHPA. 
Furthermore, in accordance with Section 112 of the NHPA, the Executive 
Director shall assure that all actions taken by employees or 
contractors of the Commission shall meet professional standards under 
regulations developed by the Secretary of the Interior, in consultation 
with the Advisory Council, other affected agencies, and the appropriate 
professional societies of the disciplines involved, specifically 
archaeology, architecture, conservation, history, landscape 
architecture, and planning.

Section 4. Commission Decision Points

    The Commission will begin its NEPA review as soon as possible after 
receiving a complete proposal submission and shall independently 
evaluate and verify the accuracy of information received from an 
applicant in accordance with 40 CFR 1506.5(a). Federal agencies making 
submissions involving an EIS or EA will seek to have the Commission 
participate as a cooperative agency during the submitting agency's 
preparation of the NEPA document. IF cooperating agency status of the 
Commission is not established, delay in the requested approval by the 
Commission may occur when necessary.
    (A) Federal, District, and Non-federal projects subject to 
Commission approval. The Commission review and approval of proposed 
federal, District of Columbia, and non-federal plans, projects and 
acquisitions of real property are described herein in relation to the 
Commission's Project Plans Submission Requirements, Master Plan 
Submission Requirements, or Submission Requirements for Antennas on 
Federal Property. Generally, projects are submitted as a Concept 
proposal, a Preliminary design, and a Final design

[[Page 41302]]

in compliance with the preceding requirements. Furthermore, the 
Commission requires that the following environmental documents (NEPA 
Environmental Assessment, Environmental Impact Statement, or a 
Categorical Exclusion determination) and NHPA Section 106 process 
information accompany the request for an approval decision:
    1. Master Plan Approval--In requesting an approval of a final 
master plan, the submitting agency shall submit, at a minimum, an 
Environmental Assessment as specified at Section 10 of these procedures 
and provide documentation of completion of the Section 106 process. In 
a submission requiring either an Environmental Assessment or an 
Environmental Impact Statement, the final determination resulting from 
the document must be completed and signed by the responsible federal 
lead agency prior to the submission of the proposal to the Commission 
for review.
    2. Site Proposal Approval--In requesting the approval of a site for 
a commemorative work authorized under the Commemorative Works Act of 
1986, 40 U.S.C. 8905(a), or other law providing for separate site and 
design proposals, the submitting agency shall submit an environmental 
document that considers the potential environmental effects of a site 
selection decision upon the proposed site and a reasonable range of 
alternative sites. The level of detail in the environmental analysis 
should be proportional to the scope of the site decision, including 
consideration of design guidelines and other criteria required by 40 
U.S.C. 8905(b), and should defer detailed consideration of the effects 
of the design approval decision to a subsequent environmental document, 
to the extent that detailed consideration of alternative design 
proposals is impractical. The submitting agency may tier their 
environmental documents for design proposals to eliminate repetitive 
discussions of issues and to focus on the issues that are ripe for 
decision at the site and design approval stages. The federal agency 
shall, in accordance with Sections 800.3 and 800.4 of 36 CFR, Part 800, 
submit documentation demonstrating that it has identified consulting 
parties to the extent possible, established a public participation plan 
for the commemorative works approval process and identified, in 
consultation with the appropriate SHPO, the Commission and other 
consulting parties, the historic properties at the sites being 
considered for the commemorative work.
    3. Concept Proposal Approval--In requesting a concept approval, the 
submitting agency shall not be required to provide an environmental 
document of Section 106 process documentation, with the exception of a 
conceptual design for commemorative works authorized under the 
Commemorative Works Act of 1986, 40 U.S.C. 8905(a). For a commemorative 
work conceptual design, the submitting agency shall ensure that the 
NEPA and Section 106 requirements for a preliminary plan approval are 
completed in advance of submission. However, the final determination on 
an Environmental Assessment or an Environmental Impact Statement 
prepared for a commemorative work concept design must only be completed 
and may be signed by the responsible federal lead agency prior to 
submission to the Commission.
    4. Preliminary Plan approval--In requesting preliminary plan 
approval, the submitting agency shall submit an environmental document 
as specified at Sections 8, 9, or 10 of these procedures. In a 
submission requiring either an Environmental Assessment or an 
Environmental Impact Statement, the final determination resulting from 
the document must be completed and signed by the responsible federal 
lead agency prior to the submission of the proposal to the Commission 
for review. If applicable, the submitting agency shall provide 
documentation demonstrating that the Section 106 process has at least 
been initiated with the appropriate SHPO at the time of submission in 
accordance with Section 800.3 of 36 CFR, Part 800. The federal agency 
should also demonstrate compliance with the Section 106 process through 
36 CFR 800.4 in consultation with the appropriate SHPO. The federal 
agency should establish the likely presence of historic properties with 
an appropriate level of field investigation, taking into account the 
number of alternatives under consideration, the magnitude of the 
undertaking and its likely effects, and the views of the SHPO and any 
other consulting parties, including the Commission. Consulting parties 
and other interested parties should be identified to the extent 
possible at this phase. Where alternatives under consideration consist 
of large land areas, generalized site areas, yet-to-be-defined specific 
design qualities and characteristics, or where access to properties is 
restricted, the applicant may use a phased process to conduct 
identification and evaluation efforts for Section 106 purposes. 
Deferral of final identification and evaluation of historic properties 
effects may occur if the documents used by the applicant comply with 
the National Environmental Policy Act and the Section 106 process 
pursuant to Sec. 800.8(c) of 36 CFR, Part 800.
    If the agency is able to make an assessment of adverse effects 
pursuant to Sec. 800.5, in consultation with the appropriate SHPO, that 
information should be included in the submission. However, the Finding 
pertaining to the Environmental Assessment or the Record of Decision 
derived from the Environmental Impact Statement must reflect the 
agency's determination of effect under Section 800.5 of 36 CFR, Part 
800 even though the Section 106 process may not have been completed.
    5. Final Plan approval--In requesting final plan approval, the 
submitting agency shall comply with the environmental document 
requirements for preliminary plan approval and shall provide 
documentation demonstrating completion of the Section 106 process, 
including all requirements of Section 800.6 of 36 CFR, Part 800.
    (B) Legislative Proposals. The Commission, in the development of 
Commission-initiated legislative proposals that would affect the 
environment, will include in any recommendation or report to Congress 
relevant NEPA documentation. The document will be available as part of 
the formal transmittal of a legislative proposal to Congress or up to 
30 days later in order to allow time for completion of an accurate 
legislative environmental impact statement consistent with 40 CFR 
1506.8.
    (C) Land Acquisitions. Prior to the Commission's acceptance of 
custody and accountability (for federal lands), or acceptance of an 
offer to donate or contract for purchase (for private lands), the 
Commission will complete the necessary NEPA document and all necessary 
Section 106 process requirements including, but not limited to, those 
set forth in 36 CFR, Subpart B, Sections 800.3, 800.4, 800.5 and 800.6.
    (D) Non-federal projects subject to Commission Approval. Non-
federal applicants shall prepare the necessary NEPA and Section 106 
documents, in conformance with the respective CEQ and Advisory Council 
requirements, according to the specifications set out in subsection (A) 
of this section. However, the Commission will make an independent 
evaluation of the NEPA document and will be the responsible lead 
federal agency for NEPA purposes, if there is no other anticipated 
federal agency involvement. When the non-federal applicant uses an 
existing NEPA document prepared by any other entity, the Commission 
will take responsibility

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for the scope and contents of the environmental document if it is 
sufficient as required by regulations. See 40 CFR, 1506.3 and 1506.5. 
The Commission will review another federal agency's NEPA document, as 
provided for in Section 12 of these procedures, and may adopt the 
document if it meets the standards for an adequate document as 
specified by CEQ regulations. Otherwise, the Executive Director will 
require preparation of a subsequent NEPA document noting in the draft 
NEPA document why the original submitted text was considered 
inadequate. Where the Commission acts as lead agency, or as a 
cooperating agency where appropriate, an EIS or EA involving a non-
federal applicant may be prepared for the Commission by a contractor 
that the Commission selects and funded by the applicant in accordance 
with 40 CFR 1506.5(c). The contractor shall provide a disclosure 
statement pursuant to 40 CFR 1506.5(c).
    (E) Emergency Actions. Where emergency circumstances make it 
necessary for the Commission to take an action with significant 
environmental impact without observing the provisions of these 
procedures, the Commission or the Executive Director must, as soon as 
practicable, consult with CEQ regarding alternative arrangements for 
NEPA compliance.

Section 5. Scoping in the Commission NEPA Process

    NCPC and all applicants to the Commission shall engage in scoping 
prior to preparation of the applicable NEPA document. Scoping means 
determining the scope or range of environmental and historic resource 
analysis needed and that must occur in preparing either an EA or EIS. 
Scoping is discussed in the CEQ regulations largely in the context of 
EIS preparation but there shall be scoping for the preparation of an EA 
as recently augmented by CEQ discussions. Scoping is a key effort to 
help eliminate unimportant issues, focus the analysis on important 
issues, and prevent redundancy and excess bulk in documents. At 
minimum, the Executive Director shall ensure that the scoping process 
includes:
    (A) Participation of affected federal, state, and local agencies, 
any affected Indian Tribe, the proponent of the action, and other 
interested persons (including those who might not be in accord with the 
action on environmental grounds). 36 CFR, Subpart B, Section 800.3 
``Initiating the Section 106 Process'' is applicable to this effort and 
must be demonstrated.
    (B) Determining the significant issues that will require in-depth 
analysis. 36 CFR, Subpart B, Section 800.3 ``Initiating the Section 106 
Process'' is applicable to this effort and must be demonstrated.
    (C) Identifying and eliminating from detailed study the issues that 
are not significant or have been covered by prior environmental review. 
In narrowing the discussion of issues, a brief presentation of why they 
will not have a significant effect on the human environment, or a 
reference to their coverage elsewhere, must be provided.
    (D) Allocating assignments for preparing the NEPA document if 
necessary.
    (E) Indicating any Environmental Assessments or Environmental 
Impact Statements (available, or that will be prepared) that relate to, 
but are not part of, the scope of the project under consideration.
    (F) Identifying other environmental review and consultation 
requirements so the lead and cooperating agencies may prepare other 
required analyses and studies concurrently with, and integrated with, 
the project.
    (G) Indicating the relationship between the timing of the 
preparation of environmental analyses and the agency's tentative 
planning and decisionmaking schedule.
    (H) At the direction of the Executive Director, establishing the 
type of scoping for a specific action sponsored by the Commission, and 
which specific methods of obtaining agency, Tribal, applicant, and 
other public participation may be used. 36 CFR, Subpart B, Section 
800.3 ``Initiating the Section 106 Process'' is applicable to this 
effort.
    Scoping through public involvement, consultations with agencies 
having jurisdiction by law or expertise, and publication of notices and 
draft documents, is required by the CEQ regulations for an EIS. 
Agencies with ``jurisdiction by law'' are those whose permission or 
assistance may be required by the Commission in order for the action to 
proceed (e.g., the Army Corps of Engineers if wetlands may be 
affected), and those with other kinds of regulatory or advisory 
authority with respect to the action or its effects on particular 
environmental factors (e.g., the Fish and Wildlife Service or the 
National Oceanic and Atmospheric Administration with respect to 
threatened or endangered species under their respective jurisdiction, 
or the Advisory Council on Historic Preservation with respect to 
historic properties and the Section 106 Review Process). 36 CFR, 
Subpart B, Section 800.3 ``Initiating the Section 106 Process'' is 
applicable to this effort. Continued dialogue and discussions with 
relevant outside agencies is essential to decisions and to the NEPA 
process.
    Agencies with ``expertise'' are those who are likely to have 
authoritative information and opinions about the area where the action 
is proposed, or about environmental impact (e.g., the U.S Geological 
Survey in the Department of the Interior, or a State Historic 
Preservation Officer). The Commission expects federal, state, Indian 
tribal, and local agencies with jurisdiction by law or expertise to be 
consulted in the NEPA document preparation by the applicant.

Section 6. Applicant NEPA Compliance Obligations

    Commission actions involve application to the Commission for review 
and approval. All submissions will specify accompanying NEPA documents 
unless the action is categorically excluded from preparation of an EA 
or EIS at Section 8 of these procedures. Specification of the 
applicable exclusion must occur. For all submissions to the Commission, 
the applicant will be required to:
    (A) Consult with the Commission as early as possible in the 
planning process to obtain guidance with respect to the appropriate 
level and scope of any studies or environmental information that the 
Commission may require to be submitted as part of, or in support of, 
the request for review.
    (B) Conduct studies that the Commission deems necessary and 
appropriate to determine the environmental impacts of the proposed 
action. This effort shall at a minimum include an EA or EIS, if 
necessary, as specified at Sections 10 or 9.
    (C) In the instance of a non-federal applicant submission when the 
Commission may act as lead federal agency, the applicant shall:
    1. Consult with affected federal, state, regional and local 
agencies, American Indian tribes, and other potentially interested 
parties during the location and preliminary planning stages of the 
proposed action to identify environmental factors and permitting 
requirements.
    2. Notify the Commission as early as possible of other federal, 
state, regional, local or American Indian tribal actions required for 
project completion to allow the Commission to coordinate the federal 
environmental review, and fulfill the requirements of 40 CFR 1506.2 
regarding elimination of duplication with state and local procedures, 
as appropriate.

[[Page 41304]]

    3. Notify the Commission of private entities and organizations 
interested in the proposed undertaking, in order that the Commission 
can consult, as appropriate, with these parties in accordance with 40 
CFR 1501.2(d)(2).
    4. Notify the Commission if the applicant plans to take an action 
that is within the Commission's jurisdiction that may have an adverse 
environmental impact or limit the choice of reasonable alternatives. If 
the Executive Director determines that the action would have an adverse 
environmental impact or would limit the choice of reasonable 
alternatives under 40 CFR 1506.1(a), the Executive Director will notify 
the applicant that the Commission will take appropriate action to 
ensure that the objectives and procedures of NEPA are achieved in 
accordance with 40 CFR 1506.1(b).

Section 7. Applicant NHPA Section 106 Compliance Obligations

    NHPA Section 106 process information will be provided in all 
submissions as identified at Section 4(A). Particular additional 
requirements are applicable as follows and are relevant to the 
submission circumstances as determined by Executive Director:
    (A) NCPC as the responsible lead federal agency for the 
undertaking. It is the statutory obligation of the Commission to 
fulfill the requirements of Section 106 and to ensure that an Agency 
Official with jurisdiction over an undertaking takes legal and 
financial responsibility for Section 106 compliance when the Commission 
is the responsible lead federal agency for the undertaking. If the 
Commission is the sole federal agency acting upon the applicant's 
project or plan, the submitting applicant must provide the Commission 
with information about an undertaking and its effects on historic 
properties as soon as Commission involvement is reasonable anticipated. 
The Executive Director may authorize an applicant to initiate 
consultation with the SHPO and others, but will remain legally 
responsible for all findings and determinations if the Commission is 
the lead federal agency for compliance with Section 106. The Executive 
Director shall notify the SHPO when an applicant or group of applicants 
is so authorized. Federal agencies that provide authorizations to 
applicants remain responsible for their government-to-government 
relationships with Indian tribes.
    If the Commission is the sole federal agency acting upon the 
submission, the Executive Director will review the proposal as an 
undertaking as defined in 36 CFR 800.16(y) of the regulations and 
determine whether it is a type of activity that has the potential to 
cause effects on historic properties. Each specific submission will 
provide the necessary information to make a review and determination 
and will include information specified at 36 CFR, Subpart B, Sections 
800.3 ``Initiation of the Section 106 process,'' Section 800.4 
``Identification of Historic Properties,'' Section 800.5 ``Assessment 
of Adverse Effects,'' and Section 800.6 ``Resolution of Adverse 
Effects.'' In addition, if applicable, 36 CFR, Subpart B, Section 
800.10 ``Special requirements for protecting National Historic 
Landmarks'' may be necessary.
    (B) Requirements to be achieved when NCPC is the lead responsible 
agency under Section 106. Based on the above referenced requirements in 
paragraph (A) and in conformance with 36 CFR, Subpart B, Section 
800.8(c), the Section 106 review shall be carried out in coordination 
with NEPA review as follows:
    1. Conduct Section 106 review when screening a project that may be 
categorically excluded from NEPA review to see whether ``extraordinary 
circumstances'' are evident requiring further review (40 CFR 1508.4). 
Whether such extraordinary circumstances are found to be present will 
depend on the severity of the impacts and the applicability of the 
extraordinary circumstances pursuant to Section 8 of these procedures. 
But even if no further review is required under NEPA, Section 106 
review must be completed.
    2. During preparation of any EA, conduct Section 106 review in 
order both to comply with Section 106 itself and to determine whether 
historic resources will be adversely affected, and if so, whether 
measures can be implemented to reduce adverse effects to a less than 
significant level. The results of the review should be reported in the 
FONSI if one is issued, with an explanation of how Section 106 review 
has resulted in avoiding significant adverse effect.
    3. Section 106 review will be conducted during preparation of any 
EIS. Scoping identification (see Section 5), and assessment of effects 
should be done during the analysis leading to the draft EIS, with the 
results presented in the DEIS. Consultation to resolve adverse effects 
should be coordinated with public comment on the DEIS, and the results 
reported in the FEIS. Any Memorandum of Agreement (MOA) developed under 
Section 106, or the final comments of the Advisory Council, should be 
addressed in the ROD. Unless there is some compelling reason to do 
otherwise, the Section 106 MOA will be fully executed before the ROD is 
issued, and the ROD shall provide for implementation of the MOA's 
terms.
    (C) Public Involvement in the Section 106 Review Process. The 
opinions of the public are essential to informed federal decision 
making in the NHPA Section 106 process specified above and at Section 
4(A). The submitting applicant will seek and consider the views of the 
public in a manner that reflects the nature and complexity of the 
undertaking and its effects on historic properties, the likely interest 
of the public in the effects on historic properties, confidentiality 
concerns of private individuals and businesses, and the relationship of 
the federal involvement to the undertaking. This information will be 
provided to the Commission in all submittals.

Section 8. Categorical Exclusions

    The Categorical Exclusion is a ``category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment and which have been found to have no such effect in 
procedures adopted by a Federal agency in implementation of these 
regulations * * * and for which, therefore, neither an environmental 
assessment nor an environmental impact statement is required.'' CEQ 
Regulations, 40 CFR 1508.4.
    The Commission has determined the following:
    (A) Criteria for Categorical Exclusion. Specific criteria for 
typical classes of action that normally do not require either an 
Environmental Impact Statement or an Environmental Assessment.
    1. Minimal or no effect on the environment.
    2. No significant change to existing environmental conditions.
    3. No significant cumulative environmental impact associated with 
the action.
    4. Similarity to actions previously assessed with a Finding of No 
Significant Impact and monitored to confirm the Finding.
    (B) Extraordinary circumstances. The Executive Director, acting on 
behalf of the Commission, must consider the characteristics of a 
project or plans that would require additional environmental review or 
analysis due to the qualities described below. If these circumstances 
are present, the application of a Categorical Exclusion would not occur 
and the appropriate environmental document will be prepared and made 
available to the Commission prior to its taking action on the item. The

[[Page 41305]]

circumstances of such consideration include:
    1. Effects of a greater scope or magnitude than normally 
experienced based on Commission review records for application of a 
particular Categorical Exclusion.
    2. Potential for degradation of existing unsatisfactory 
environmental conditions.
    3. Use of unproven technology.
    4. Reasonable evidence of potential adverse effects on an 
endangered or threatened species, archaeological remains, historic or 
other protected resources.
    5. The action is related to individually insignificant but 
cumulatively significant environmental effects as described in the 
Federal Environment Element, the Parks and Open Space Element of the 
Comprehensive Plan for the National Capital, or other applicable 
Commission plans or programs.
    (C) Categorical Exclusions. Actions that normally do not require 
either an Environmental Impact Statement of an Environmental Assessment 
include:
    1. Repair, replacement, and routine installation of onsite primary 
or secondary electrical distribution systems.
    2. Repair, replacement, and routine installation of components such 
as windows, doors, roofs; and site elements such as site or building 
identification signs, sidewalks, patios, fences, retaining walls, 
curbs, or gates. Additional features include water distribution lines, 
and sewer lines which involve work that is essentially replacement in 
kind.
    3. Grounds and facility maintenance activities undertaken in 
accordance with the Presidential Memorandum on Environmentally and 
Economically Beneficial Landscape Practices on Federal Landscaped 
Grounds (60 FR 40837) and other applicable standards for grounds and 
facilities management.
    4. Procurement activities for goods and services for facility 
operations maintenance and support in accordance with applicable 
federal standards for procurement and recycling.
    5. Interior construction or renovation involving non-historic 
structures, or if historic have demonstrated in the Commission 
submission compliance with the Section 106 process.
    6. Reductions in force resulting from federal agency workload 
adjustments, reduced personnel or funding levels, skill imbalances, or 
other similar causes.
    7. A federal interest review of and, as a part thereof, 
coordinating federal agency comments on, general plans and capital 
improvement programs of local governments in the Maryland and Virginia 
portions of the Region and on regional policies and plans of the 
Metropolitan Washington Council of Governments pursuant to the 
Commission's function as the central federal planning agency in the 
Region and in furtherance of the purposes set forth in Section 1(a) of 
the Planning Act.
    8. Review of an action that a District of Columbia agency has 
submitted and designated as an exclusion in accordance with the 
requirements and procedures of the District of Columbia Code, Chapter 
9, Environmental Controls, Subchapter VI, Section 6-986.
    9. Certify to the Council, together with findings and 
recommendations, whether a District Element of the Comprehensive Plan, 
or amendment thereto, adopted by the Council has a negative impact on 
the interests or functions of the Federal Establishment in the National 
Capital, 40 U.S.C. 8721(b)-(c); D.C. Code 2-1002(a)(4)(A).
    10. Determine whether a modification to the District element of the 
Comprehensive Plan, submitted by the Council, as to which the 
Commission has certified a negative impact on the interests or 
functions of the Federal Establishment in the National Capital, has 
been made in accordance with the Commission's findings and 
recommendations. 40 U.S.C. 8721(c)(3)(C)-(D); D.C. Code 2-
1002(a)(4)(B).
    11. Adopt a Federal Element of the Comprehensive Plan or amendment 
thereto. 40 U.S.C. 8721(a): D.C. Code 2-1003.
    12. Submit to the Zoning Commission proposed amendments or general 
revisions to the Zoning Regulations. 40 U.S. 8724(a); D.C. Code 2-
1006(a).
    13. Approve changes to highway plans for portions of the District 
of Columbia prepared by the Mayor, pursuant to D.C. Code 9-103.02, when 
such plans involve no major traffic volume increase, has a minimal or 
no effect on the environment, no significant change to existing 
environmental conditions, and no significant cumulative environmental 
impact associated with the action as demonstrated in a submitted 
District of Columbia Environmental Impact Screening Form (EISF).
    14. Approve the sale of real estate owned in fee simple by the 
District of Columbia for municipal use, which the Council and 
Commission find to be no longer required for public purposes as 
specified in 40 U.S.C. 8734(a) when such plans involve no major traffic 
volume increase, has a minimal or no effect on the environment, no 
significant change to existing environmental conditions, and no 
significant cumulative environmental impact associated with the action 
as demonstrated in a submitted District of Columbia Environmental 
Impact Screening Form (EISF).
    15. Approve the sale by the Secretary of the Interior of minor 
parcels of real estate held by the United States in the District of 
Columbia under the jurisdiction of the National Park Service that may 
be no longer needed for public purposes. 40 U.S.C. 8735(a); D.C. Code 
10-804. Such an action shall be accompanied by a National Park Service 
NEPA determination that demonstrates a minimal or no effect on the 
environment, no significant change to existing environmental 
conditions, and no significant cumulative environmental impact 
associated with the action.
    16. Approve the exchange of minor parcels of District-owned land, 
or part thereof, for an abutting lot or parcel of land, or part 
thereof. 40 U.S.C. 8734; D.C. Code 10-901, when such plans involve 
minimal or no effect on the environment, no significant change to 
existing environmental conditions, and no significant cumulative 
environmental impact associated with the action as demonstrated in a 
submitted District of Columbia Environmental Impact Screening Form 
(EISF).
    17. Approve settlements for the purpose of establishing and making 
clear the title of the United States in land and water in, under, and 
adjacent to the Potomac River, the Anacostia River, or Eastern Branch, 
and Rock Creek. D.C. Code 10-102.
    18. Approve harbor regulations made by the Council that have a 
negligible effect upon the interests and rights of the Commission, 
pursuant to D.C. Code 22-4401.
    19. Review and report on special exception applications with the 
Naval Observatory Precinct District. D.C. Municipal Regulations 11-
1533.
    20. Review and approval of the installation of communication 
antennae on federal buildings and co-location of communication antennae 
on federal property consistent with the General Services Administration 
Bulletin FPMR D-242, Placement of commercial antennas on Federal 
property and the NCPC Submission Requirements for Antennas on Federal 
property.
    21. Review and approval of acquisition of occupiable space by lease 
acquision, construction, or expansion, or improvement of an existing 
facility where all of the following conditions are met:
    (a) The structure and proposed use are in compliance with local 
planning and

[[Page 41306]]

zoning and any applicable District of Columbia, state, or federal 
requirements
    (b) The proposed use will not substantially increase the number of 
motor vehicles at the facility;
    (c) The site and the scale of construction are consistent with 
those of existing adjacent or nearby buildings; and
    (d) There is no evidence of community controversy or other 
environmental issues.
    22. Review and approval of land exchanges or transfer of 
jurisdiction that will not lead to anticipated changes in the use of 
land and that have no potential for environmental impact.
    All projects, activities and programs excluded from NEPA review 
under these procedures shall still be reviewed to determine if the 
proposal qualifies as an undertaking requiring review under Section 106 
of the National Historic Preservation Act, pursuant to 36 CFR, Subpart 
B, Section 800.3(a).

Section 9. Commission Actions That Normally Require Commission 
Preparation of Environmental Impact Statements

    Because the Commission acts upon a broad range of proposals for 
action by federal and non-federal applications, each of which 
represents a unique context and intensity of effects, there are no 
``typical classes'' of Commission action that normally requires an EIS, 
However, the Commission shall consider each specific submission on a 
case-by-case basis in accordance with the following context and 
intensity criteria:
    (A) Context. The significance of proposals for Commission action 
shall be judged based on the effects of the proposal on society as a 
whole, the National Capitol region and its environs, the particular 
interests affected, and effects on the locality or area that is the 
subject of the proposed action. The context of the proposed action 
shall be identified by reference to, and in accordance with, the 
actions and effects considered in the Comprehensive Plan for the 
National Capital, National Capital Urban Design and Security Plan, 
Legacy Plan, Federal Capital Improvements Program and other applicable 
Commission plans and programs. Proposals for Commission action that 
detract or differ substantially from the goals and objectives of 
Commission plans and programs are generally more likely to be found 
significant than proposals that are consistent with Commission plans 
and programs. Proposals for Commission action in or affecting the 
Monumental Core units of the National Park System, or the water and 
habitat quality of the Potomac and Anacostia Rivers and other water 
bodies listed under Section 303(d) of the Federal Water Pollution 
Control Act are generally more likely to be found significant than 
proposals that have little or no effect upon those resources.
    (B) Intensity. The significance of proposals for Commission action 
shall be judged based on the severity of the proposal's impact on the 
environment by reference to, and in accordance with, the goals and 
policies of the Federal Environment Element and Parks and Open Space 
Element of the Comprehensive Plan for the National Capital, and other 
applicable Commission plans and programs. In considering the effects 
identified in CEQ regulations, 40 CFR 1508.27(b), effects of proposals 
for Commission action that are individually or cumulatively 
inconsistent with, including delay in achievement of, the goals and 
policies of the Federal Elements or related commission plans and 
programs are generally more likely to be found significant than 
proposals that are consistent with Commission goals, policies, plans 
and programs considering the proposal's effects regarding magnitude, 
extent, duration, and frequency of consequences on those objectives. 
The Commission shall specifically consider any effects that are 
inconsistent with:
    1. The Chesapeake Ecosystem Unified Plan, the goals, policies, and 
initiatives contained in the Chesapeake Bay 2000 Program, and successor 
or related agreements for the protection and restoration of the habitat 
and water quality of the Chesapeake Bay watershed;
    2. The Legacy Plan and successor or related plans to improve 
conditions in and around the Monumental Core and avoid adverse effects 
upon districts, sites, highways, structures, or objects listed in or 
eligible for listing in the National Register of Historic Places;
    3. Regional attainment of the National Ambient Air Quality Standard 
for ozone and other criteria air pollutants;
    4. Noise reduction efforts in and around the Mall area and nearby 
locations along the Potomac and Anacostia Rivers that, because of their 
open space pastoral setting and recreational land use opportunities, 
are susceptible to noise effects;
    5. The Environmental Protection Agency's Chesapeake Bay 2000 
Program and other regional and local efforts continue to contribute to 
improved water quality in the Region, as well as effects on water 
quality including:

(a) Dissolved oxygen levels in the Upper Potomac Estuary
(b) The ability of urban streams to meet bacterial standards for safe 
water contact
(c) Sedimentation from excessive upstream erosion
(d) Increases in the amount of impervious surfaces and stormwater 
runoff
(e) Loss of wetlands or streamside forest buffers

    6. Waste management practices promoting resource conservation and 
recovery as a means of reducing the impact of solid waste and avoiding 
the generation of hazardous waste material that poses significant risks 
of exposure to humans and to the environment;
    7. Efforts to ensure that no group of people, including a racial, 
ethnic, or socioeconomic group, bears a disproportionate share of the 
negative environmental consequences of actions within the jurisdiction 
of the Commission;
    8. Antenna Submission Requirements aimed at addressing the 
aesthetic impacts of antennas on the scenic and visual qualities of the 
National Capitol Region;
    9. Smart Growth and Sustainability opportunities, including tree 
replacement initiatives to reverse the loss of trees in the National 
Capitol Region, and the conservation and management of Environmentally 
Sensitive Areas in the National Capital Region, including vegetation, 
floodplains, wetlands, aquifers and recharge areas, soils, native 
species and wildlife habitats.
    Another federal lead agency may determine that an EIS is normally 
required on an action that they are proposing to submit for 
consideration by the Commission. In such circumstances, the agency will 
coordinate with the Commission in the preparation of the EIS and the 
Commission shall be identified by the lead agency as an official 
cooperating agency.
    (C) Non-federal applicants' preparation of an EIS will require the 
Commission to be the lead federal agency for NEPA, unless another 
federal agency agrees to act as lead agency. In the role as lead 
federal agency, the Commission will direct and circulate the EIS and 
develop a related ROD in accordance with the requirements of the CEQ 
Regulations. The Commission shall ensure that, in the draft and final 
EIS developed by the Commission, a disclosure statement is executed by 
any contractor (or subcontractor), under contract to prepare the EIS 
document in

[[Page 41307]]

accordance with 40 CFR 1506.5(c), and that the disclosure appears as an 
appendix to the EIS.
    In the preparation of a non-federal applicant EIS directed by the 
Commission, the following steps will be taken:
    1. Notice of Intent (NOI) and scoping. The Commission shall publish 
an NOI in the Federal Register, in accordance with 40 CFR 1501.7, 
containing the elements specified in 40 CFR 1508.22 as soon as 
practicable after a decision is made to prepare an EIS.
    Through the NOI, the Commission will invite comments and 
suggestions on the scope of the EIS.
    The Executive Director shall disseminate the NOI in accordance with 
40 CFR 1506.6. Publication of the NOI in the Federal Register shall 
begin the public scoping process. The public scoping process for a 
Commission EIS will allow a minimum of 30 days for the receipt of 
public comments. The Commission will hold at least one public scoping 
meeting after publication of the NOI as part of the public scoping 
process for a Commission EIS. The Executive Director will publish 
public notification of the location, date, and time of public scoping 
meeting(s) in the NOI or by other appropriate means, such as news 
releases to the local media, or letters to affected parties. Public 
scoping meetings will not be held until at least 30 days after public 
notification.
    2. In determining the scope of the EIS, the Executive Director 
shall consider all comments received during the announced comment 
period held as part of the public scoping process. The Executive 
Director may also consider comments received after the close of the 
announced comment period. A public scoping process is optional for a 
Commission supplemental EIS (40 CFR 1502.9(c)(4)). If the Executive 
Director initiates a public scoping process for a supplemental EIS, the 
provisions of this section shall apply.
    (D) Public review of an EIS.
    1. The public review and comment period on a commission draft EIS 
will be no less than 45 days (40 CFR 1506.10(c)). The public comment 
period begins when EPA publishes a Notice of Availability of the 
document in the Federal Register.
    2. The Executive Director will hold at least one public meeting 
during the public comment period on the draft EIS. Such a public 
meeting will be announced at least 30 days in advance of its scheduled 
occurrence. The announcement shall identify the subject of the draft 
EIS and include the location, date, and time of the public meeting.
    (E) The Executive Director will prepare a final EIS following the 
public comment period and the public meeting on the draft EIS. The 
final EIS shall respond to oral and written comments received during 
public review of the draft EIS, as provided at 40 CFR 1503.4.
    (F) The Commission will make a decision about a proposal covered by 
an EIS after a 30-day ``review period'' following completion of the 
final EIS. The 30-day period starts when the EPA Notice of Availability 
for the final EIS is published in the Federal Register. If the The 
Executive Director decides to recommend an action on a proposal covered 
by an EIS, information to be contained in a Record of Decision (ROD), 
including monitoring and enforcement provisions as described at 40 CFR 
1505.2, will be incorporated into the The Executive Director's 
Recommendation report. The Executive Director's Recommendation report 
will be available to the public prior to the Commission meeting where 
the proposal will be specifically acted upon. The Commission will 
arrive at its decision about the proposal and its environmental 
effects, as well as other considerations as specified in 40 CFR 1505.2, 
in a public meeting of record as identified by the Commission monthly 
agenda. The Commission may revise a ROD at any time, so long as the 
revised decision is adequately supported by an existing EIS. A revised 
ROD shall be subject to a public review and subject to the provisions 
of this paragraph.
    (G) A supplemental Environmental Impact Statement will be prepared 
by the The Executive Director if there are substantial changes to the 
EIS proposal or significant new circumstances or information relevant 
to environmental concerns, as discussed in 40 CFR 1502.9(c)(1).
    1. The Executive Director may supplement a draft EIS or final EIS 
at any time, to further the purposes of NEPA, in accordance with 40 CFR 
1502.9(c)(2).
    2. The Executive Director will prepare, circulate, and file a 
supplement to a draft or final EIS in the same manner as any original 
draft and final EIS, except that scoping is optional for a supplement. 
If the The Executive Director decides to recommend an action on a 
proposal covered by a supplemental EIS, information to be contained in 
a ROD, including monitoring and enforcement provisions as described at 
40 CFR 1505.2, will be incorporated into the The Executive Director's 
Recommendation report. The Executive Director's Recommendation report 
will be available to the public prior to the Commission meeting where 
the proposal will be specifically acted upon. The Commission will 
arrive at its decision about the proposal and its environmental 
effects, as well as other considerations as specified in 40 CFR 1505.2, 
in a public meeting of record as identified by the Commission monthly 
agenda.
    (H) The Executive Director, as provided in 40 CFR 1506.3, may adopt 
an existing EIS in accordance with CEQ Regulations.
    (I) Section 106 consultation should be conducted during preparation 
of any EIS. Scoping, identification (see Section 5), and assessment of 
effects should be done during the analysis leading to the draft EIS, 
and the results should be presented in the draft EIS. Consultation to 
resolve adverse effects should be coordinated prior to and during 
public comment on the draft EIS, with the results reported in the final 
EIS. Any Memorandum of Agreement (MOA) developed under Section 106, or 
the final comments of the Advisory Council, should be addressed in the 
ROD. Unless there is some compelling reason to do otherwise, the 
Section 106 MOA should be fully executed before the ROD is issued, and 
the ROD should provide for implementation of the MOA's terms. 36 CFR, 
Subpart B, Section 800.8(c) of the Advisory Council's implementing 
regulations offers further guidance.

Section 10: Environmental Assessments

    If a proposal or action is one that normally does not qualify for 
Categorical Exclusion, and the Executive Director does not find that 
consideration of the proposal should be documented in an EIS, the 
Executive Director will require preparation of an Environmental 
Assessment (EA). CEQ regulations identify the process of preparing 
Environmental Assessments, and that EA's are documents prepared to 
determine if an EIS is necessary. EAs should concisely describe the 
need for the proposal, the proposed action, and alternatives that meet 
the need for the proposal and the requirements of NEPA Section 
102(2)(E), their environmental consequences, and a list of agencies and 
persons consulted (See Appendix A). If an EA determines that the 
proposed action will not have a significant effect on the human 
environment, the Executive Director will not prepare an EIS but must 
prepare a Finding of No Significant Impact (FONSI) (40 CFR 1508.13, 
``Finding of No Significant Impact'') if the Commission utilizes the EA 
in its decision as a final approval action in concert with its 
authority under the Planning Act.
    (A) Criteria used to determine those categories of action that 
normally

[[Page 41308]]

require an Environmental Assessment, but not necessarily an 
Environmental Impact Statement, include:

1. Detectable but likely insignificant degradation of environmental 
quality
2. Detectable but likely insignificant cumulative impact on 
environmental quality
3. Detectable but likely insignificant impact on protected resources
    (B) Preparation of an EA for Commission review or adoption, if 
required, should generally adhere, for content, to the outline 
identified in Appendix A. Written in plain language, the EA should be 
analytic rather than encyclopedic and it should use an 
interdisciplinary analysis. The EA must encompass the range of 
alternatives to be considered by the Commission and it should be 
publicly scoped to assess alternatives and environmental impacts and 
involve interested persons and agencies in the development of the EA.
    (C) If either a federal of the non-federal applicant applicant uses 
an existing EA in a submission requiring Commission approval, the 
Commission will adopt and take responsibility for the scope and 
contents of the environmental document if it is sufficient as defined 
by CEQ regulations. See 40 CFR, 1506.3 and 1506.5. The Commission will 
review another federal agency's EA, as provided for in Section 12 of 
these procedures, and may adopt the document if it meets the standards 
for an adequate document.
    (D) Public review of an EA. The public review and comment period on 
a Commission-prepared EA will be no less than 30 days. The public 
comment period begins when the Commission publishes a Notice of 
Availability of the document in its tentative monthly Agenda or by 
separate mailing. Anyone may request a copy of the EA by contacting the 
Commission or the Commission Web site.
    (E) The Commission will prepare a FONSI only if the related EA 
supports the finding that the proposed action will not have a 
significant effect on the human environment. If a required EA does not 
support a FONSI, the Commission will seek to have an EIS prepared, or 
the proposal will not be further considered for review and approval. In 
addition to the requirements found at 40 CFR 1508.13, a FONSI will 
include the following:
    1. Any commitments to mitigation that are essential to render the 
impacts of the proposed action not significant, beyond those 
mitigations that are integral elements of the proposed action.
    2. The date of issuance.
    3. The signature of the Executive Director.
    (F) A FONSI will be available for public review before the 
Commission takes an action on staff recommendation for the proposed 
action.
    (G) Based on a review of the typical classes of actions it 
undertakes, the Commission has established that the following actions 
will normally require an Environmental Assessment but not necessarily 
an EIS prior to Commission action on the submitted proposal:
    1. Approve a site proposal or preliminary design and recommendation 
to federal agencies, District of Columbia agencies, and non-federal 
applicants on actions or plans for a newly acquired site involving a 
project submitted to the Commission pursuant to 40 U.S.C. 8722(b)(1).
    2. Approve preliminary plans for federal public buildings on 
existing federal land in the District of Columbia, and the provisions 
for open space in and around the same, pursuant to 40 U.S.C. 8722(d); 
DC Code 2-1004(c), except where such approval would apply to actions as 
specified at Section 8(C), item 21 of these procedures.
    3. Approve the conceptual design of any commemorative work 
authorized under the Commemorative Works Act of 1986, 40 U.S.C. 
8905(a). In the analysis for a commemorative work conceptual design the 
submitting agency shall ensure that the NEPA and Section 106 
requirements, as provided at Section 4 (A)(3) of these procedures, are 
completed in advance of submission.
    4. Approve a final report and recommendation to a federal or 
District of Columbia agency on any master plan or master plan 
modification submitted to the Commission. 40 U.S.C. 8722(c); DC Code 2-
1004(d).
    5. Approve the location, height, bulk, number of stories, size, and 
the provision for open space in and around District of Columbia public 
buildings in the central area of the District as concurrently defined 
by the Commission and Council. 40 U.S.C. 8722(e); DC Code 2-1004(c) \1\
---------------------------------------------------------------------------

    \1\ The central area has been concurrently defined by the 
Commission and Council to include the Shaw School and Downtown Urban 
Renewal Areas.
---------------------------------------------------------------------------

    6. Approve acquisition of lands in the District of Columbia and 
adjacent areas in Maryland and Virginia for the National Capital park, 
parkway, and playground systems and, in connection with acquisitions in 
Maryland and Virginia, make agreements with state officials as to the 
arrangements for such acquisitions. 40 U.S.C.; DC Code 2-1009.
    7. Approve a comprehensive or general plan of the District of 
Columbia pursuant to Section 6(a) of the Redevelopment Act.
    8. Approve plans showing the location, height, bulk, number of 
stories, size, and provisions for open space and off-street parking in 
and around buildings for foreign governments and international 
organizations on land sold or leased by the Secretary of State in the 
northwest section of the District of Columbia bounded by Connecticut 
Avenue, Tilden Street, Reno Road, 36th Street, Yuma Street, and Van 
Ness Street, pursuant to Section 4 of the Act of October 8, 1968 (Pub. 
L. 90-553) as amended by Public Law 97-186.
    9. Approve transfers of jurisdiction over properties within the 
District of Columbia owned by the United States or the District among 
or between federal and District authorities, pursuant to 40 U.S.C. 
8124(a), except where such transfers or jurisdiction conform to master 
plans or site and building plans approved by the Commission, or to 
urban renewal plans and modifications thereof, adopted by the 
Commission, or conform to the conditions specified at Section 8(C), 
item 22 of these procedures.
    (H) Section 106 consultation should be conducted during preparation 
of any EA. Scoping, identification (see Section 5), and assessment of 
effects should be done during the analysis leading to preparation of 
the EA, and the results should be presented in the EA. Consultation to 
resolve adverse effects should be coordinated with public comment and 
evidence of that effort must occur and be reported in the EA. Any 
Memorandum of Agreement (MOA) required under Section 106, or the final 
comments of the Advisory Council, should be addressed in the Finding of 
No Significant Impact (FONSI). 36 CFR, Subpart B, Section 800.8(a) of 
the Advisory Council's implementing regulations offers further 
guidance.

Section 11. Public Participation

    Public participation is required as a part of the EIS scoping and 
in the draft EIS review. The Commission must involve environmental 
agencies, applicants, and the public, to the extent practicable, in the 
preparation of EAs, and in determining whether extraordinary 
circumstances exist that may involve application of a Categorical 
Exclusion. The level and kind of public participation depend on the 
nature of the proposed action and the likely environmental issues.
    Public involvement is appropriate:
    1. During scoping.

[[Page 41309]]

    2. During the actual analysis of alternatives, the affected 
environment, and potential impacts.
    3. During the review of the results of analyses as recorded in EAs 
and EISs. Commission recommended actions for involving the concerned 
public include:
    1. Identify the potential ``stakeholders'' (that is, those with an 
economic, cultural, social, or environmental ``stake'') in the action 
through background research, consultation with knowledgeable parties, 
and public meetings.
    2. Consult with stakeholders to establish and address their 
concerns.
    3. Use facilitators where appropriate and necessary.
    Where there may be language or cultural barriers to effective 
communication about scoping actions or decisions, public participation 
measures must be sensitive to such barriers and make appropriate 
efforts to overcome them. Translations into the community's usual 
language, and meetings held in ways that accommodate their cultural 
traditions, values, and modes of communication may be necessary.
    Public meetings for purposes of scoping MUST:
    1. Ensure that meeting facilities are accessible to the disabled.
    2. Provide signers or interpreters for the hearing impaired, if 
requested.
    3. Make special arrangements as needed for consultation with 
affected Indian tribes or other Native American groups who have 
environmental concerns that cannot be shared in a public forum.
    To the fullest extent possible, the Commission shall use the public 
participation processes designed for carrying out NEPA requirements 
concurrent with and integrated with the environmental impact analyses 
and related surveys and studies required to comply with the NHPA, 
Section 106; the Comprehensive Environmental Response, Compensation, 
and Liability Act; the Native American Graves Protection and 
Repatriation Act (NAGPRA); Superfund Amendments & Reauthorization Act 
(SARA) Title III (Emergency Planning and Community Right-to-Know Act, 
or EPCRA); the Fish and Wildlife Coordination Act, the Endangered 
Species Act, and applicable Executive Orders.
    With regard to the Section 106 process, the submitting applicant 
must, except where appropriate to protect confidentiality concerns of 
affected parties, provide the public with information about an 
undertaking and its effects on historic properties and seek public 
comment and input prior to submittal of the potential undertaking to 
the Commission. Members of the public may also provide views on their 
own initiative for the Executive Director, the Commission, and 
submitting applicant to consider in decision making.

Section 12. Delegations to the Executive Director

    In conjunction with carrying out these procedures, the Commission 
delegates to the Executive Director the functions of:
    (A) Determining whether to prepare an EIS, make a Finding of No 
Significant Impact, or issue a Categorical Exclusion determination.
    (B) Scoping and obtaining the information required for the 
preparation of a draft EIS or an environmental assessment.
    (C) Preparing a draft EIS.
    (D) Circulating a draft EIS for review and comment to EPA, affected 
and interested public agencies, and the general public.
    (E) Integrating agency and public comments, where appropriate, into 
the preparation of the final EIS.
    (F) Distributing the final EIS to EPA and all agencies and 
individuals who commented on the draft EIS.
    (G) Determining the appropriate environmental documentation for 
each stage of Commission review, including adoption of federal agency 
prepared NEPA documents when appropriate.
    (H) Monitoring and ensuring that mitigation and other conditions 
established by the Commission are implemented, including informing the 
public and cooperating or commenting agencies on progress regarding 
mitigation measures that the Commission proposed and were adopted.
    (I) Preparing, circulating, and filing supplements to either draft 
or final environmental impact statements, if the Executive Director or 
the Commission finds that there are substantial changes to a proposed 
action that are relevant to environmental concerns, significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impact, or that the purpose of 
NEPA will be furthered by doing so.
    These delegates are not to be construed, however, to extend to the 
requirement to respond to any comments of the Advisory Council on 
Historic Preservation. That responsibility solely resides with the 
Chairman of the Commission.

Section 13. Public Information

    Interested persons can obtain information on all elements of the 
Commission's NEPA and Section 106 processes from the Commission at 401 
Ninth Street, NW., North Lobby, Suite 500, Washington, DC 20576. The 
public is also invited to visit the National Capital Planning 
Commission's Web site at www.ncpc.gov. The Office of Urban Design and 
Plans Review, at (202) 482-7200, can provide specific information on 
any aspect of a Commission NEPA document. The Commission will, to the 
maximum extent practicable, use the Commission's website and other 
effective means of communication to provide the public with current and 
relevant information regarding the quality of the human environment in 
the National Capital Region and the past, present and reasonably 
foreseeable future effects of Commission actions and proposals.

Section 14. Supersession

    The Commission's environmental policies and procedures published at 
36 FR 23706, 37 FR 3010, 37 FR 4936, 37 FR 11198, 37 FR 16039, and 47 
FR 51481 are superseded.

Section 15. Authority

    These procedures are adopted pursuant to the National Environmental 
Policy Act of 1969, as amended, 42 U.S.C. 4321 et seq., the Council on 
Environmental Quality's Regulations for Implementing the Procedural 
Provisions of the National Environmental Policy Act (43 FR 55978-
56007), and the implementing regulations of Section 106 of the National 
Historic Preservation Act, 36 CFR, Part 800--Protection of Historic 
Properties.

    Dated: June 30, 2004.
Wayne E. Costa,
Acting General Counsel & Designated Federal Register Officer.
[FR Doc. 04-15442 Filed 7-7-04; 8:45 am]
BILLING CODE 7520-01-M