[Federal Register Volume 71, Number 243 (Tuesday, December 19, 2006)]
[Proposed Rules]
[Pages 76082-76106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21402]



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Part V





Environmental Protection Agency





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40 CFR Part 6



Procedures for Implementing the National Environmental Policy Act and 
Assessing the Environmental Effects Abroad of EPA Actions; Proposed 
Rule

  Federal Register / Vol. 71, No. 243 / Tuesday, December 19, 2006 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 6

[EPA-HQ-OECA-2005-0062; FRL-8257-1]
RIN 2020-AA42


Procedures for Implementing the National Environmental Policy Act 
and Assessing the Environmental Effects Abroad of EPA Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
proposing amendments to its procedures for implementing the 
requirements of the National Environmental Policy Act of 1969 (NEPA). 
This proposed rule also includes minor, technical amendments to the 
Agency's procedures for implementing Executive Order 12114, 
``Environmental Effects Abroad of Major Federal Actions.''
    This proposed rule would amend EPA's NEPA implementing procedures 
by: consolidating and standardizing the procedural provisions and 
requirements of the Agency's environmental review process under NEPA; 
clarifying the general procedures associated with categorical 
exclusions, consolidating the categories of actions subject to 
categorical exclusion, amending existing and adding new categorical 
exclusions, and consolidating and amending existing and adding new 
extraordinary circumstances; consolidating and amending the listing of 
actions that generally require an environmental impact statement; 
clarifying the procedural requirements for consideration of applicable 
environmental review laws and executive orders; and incorporating other 
proposed revisions consistent with the Council on Environmental 
Quality's regulations (CEQ's Regulations).

DATES: Comments must be received on or before February 20, 2007. Under 
the Paperwork Reduction Act, comments on the information collection 
provisions must be received by the Office of Management and Budget 
(OMB) on or before January 18, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2005-0062, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-564-0072, Attention: Robert Hargrove.
     Mail: EPA-HQ-OECA-2005-0062, Environmental Protection 
Agency, EPA Docket Center (EPA/DC), Enforcement and Compliance Docket 
and Information Center, Mailcode: 2201T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. In addition, please mail a copy of your comments 
on the information collection provisions to the Office of Information 
and Regulatory Affairs, Office of Management and Budget (OMB), Attn: 
Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
     Hand Delivery: Public Reading Room, Room B102, Enforcement 
and Compliance Docket and Information Center, EPA West Building, 1301 
Constitution Avenue, NW., Washington, DC 20004. Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2005-0062. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the 
Public Reading Room, Room B102, Enforcement and Compliance Docket and 
Information Center, EPA West Building, 1301 Constitution Avenue, NW., 
Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the OECA Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Hargrove; NEPA Compliance 
Division; Office of Federal Activities (Mailcode 2252A); Environmental 
Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460; 
telephone (202) 564-7157; fax number: (202) 564-0072; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: This preamble is organized according to the 
following outline:

I. General Information
    A. Does This Proposed Rule Apply to Me?
    B. Tips for Preparing Your Comments
II. Introduction
    A. Statutory authority
    B. Background
    C. Exemptions From NEPA for Certain EPA Actions
    D. EPA's Voluntary NEPA Policy and Procedures
III. Purpose and Policy
IV. Proposed Changes to the Regulations and Objectives of These 
Proposed Changes
    A. Proposed Revision to the Title for EPA's Regulations at Part 
6
B. Restructuring and Standardizing EPA's NEPA Implementing 
Regulations
    1. Consolidate and Standardize the Procedural Provisions and 
Requirements of the Agency's Environmental Review Process Under NEPA
    2. Clarify the General Procedures Associated With Categorical 
Exclusions; Consolidate the Categories of Actions Subject to 
Categorical Exclusion; Amend Existing and Add New Categorical 
Exclusions; and Consolidate and Amend Existing and Add New 
Extraordinary Circumstances
    3. Consolidate and Amend the Listing of Actions that Generally 
Require an Environmental Impact Statement

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    4. Clarify the Procedural Requirements for Consideration of 
Applicable Environmental Review Laws and Executive Orders
    5. Other Proposed Revisions Consistent With the CEQ Regulations
C. Proposed amendments to EPA's Procedures for Implementing 
Executive Order 12114
    1. Amendment to Re-Designate the Subpart for EPA's Procedures 
Implementing Executive Order 12114
    2. Amendments to Update Office Names and Titles
    3. Amendment to Reference in the Executive Order 12114 
Implementing Procedures to EPA's Voluntary NEPA Policy
    4. Amendment to Reference in the Executive Order 12114 
Implementing Procedures to EPA's NEPA Implementing Procedures
    5. Amendments for Correction of Cross-References and 
Typographical Errors
V. Proposed Amended and New Categories of Actions Eligible for 
Categorical Exclusion; Amended and New Extraordinary Circumstances; 
and Amended Listing of Actions That Generally Require an 
Environmental Impact Statement
VI. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution and Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does This Proposed Rule Apply to Me?

    Those subject to the proposed rule include EPA employees who must 
comply with NEPA or Executive Order 12114, and certain grant and permit 
applicants who must submit environmental information documentation to 
EPA for their proposed projects.
    EPA's Procedures for Implementing NEPA. As with EPA's current NEPA 
implementing regulations, compliance with the proposed regulations 
would be the responsibility of EPA's Responsible Officials. For 
applicant-proposed actions, certain procedures in the proposed NEPA 
regulations would require those defined in the proposed regulations as 
applicants (that is, grant and permit applicants) to provide 
environmental information for EPA's use in its environmental review 
process.
    Currently, EPA's NEPA implementing regulations apply, by subpart, 
to specific types of EPA proposed actions. For example, Subpart E 
applies to the award of wastewater treatment construction grants under 
Title II of the Clean Water Act, and Subpart F applies to EPA's 
environmental review process for issuance of new source National 
Pollutant Discharge Elimination System (NPDES) permits. The proposed 
regulations would consolidate and standardize the environmental review 
process applicable to all EPA proposed actions subject to NEPA, 
including those actions now specifically addressed in the current 
regulations and other actions subject to NEPA but not specifically 
addressed in the current regulations (e.g., certain EPA grant awards 
for special projects identified in the State and Tribal Assistance 
Grants (STAG) account authorized by Congress through the Agency's 
annual Appropriations Act, including grants for the Border 
Environmental Cooperation Commission/Border Environmental 
Infrastructure Fund and Colonias grant projects). As with EPA's current 
regulations, the proposed regulations would supplement and be used in 
conjunction with the government-wide Council on Environmental Quality 
(CEQ) NEPA Regulations (40 CFR Parts 1500-1508).
    For additional information of interest to applicants, please see 
Preamble IV.B.5, ``Other proposed revisions consistent with the CEQ 
Regulations. This section provides further information on proposed 
revisions that apply to applicants.
    EPA's Procedures for Implementing Executive Order 12114. As with 
EPA's current Executive Order 12114 implementing procedures, compliance 
with these procedures would be the responsibility of EPA's Responsible 
Officials. As with the current procedures, for applicant-proposed 
actions, applicants may be required to provide environmental 
information for EPA's use in its environmental review process. EPA's 
Executive Order 12114 implementing procedures ensure that environmental 
information is available to the Agency's decision-makers and other 
appropriate Federal agencies and officials for proposed actions subject 
to Executive Order 12114.
    Today's proposed rule also includes minor, technical amendments to 
the Agency's procedures for implementing Executive Order 12114 (42 
U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR 1979, Comp., p. 356). 
EPA actions typically subject to Executive Order 12114 include major 
EPA actions that affect the environment of a foreign nation or the 
global commons and may include: major research or demonstration 
projects, ocean dumping activities carried out under section 102 of the 
Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 et 
seq.), and major permitting or licensing of facilities by EPA (such as 
EPA-issued permits for hazardous waste treatment, storage, or disposal 
facilities under section 3005 of the Resource Conservation and Recovery 
Act (42 U.S.C. 6925), National Pollutant Discharge Elimination System 
permits under section 402 of the Clean Water Act (33 U.S.C. 1342), and 
prevention of significant deterioration approvals under Part C of the 
Clean Air Act (42 U.S.C. 7470 et seq.).
    To determine whether your project would be subject to these 
procedures, you should carefully examine the applicability criteria in 
Sec.  6.101 and Subpart C of the NEPA implementing procedures, and 
Sec.  6.401 of the Executive Order 12114 implementing procedures in 
this proposed rule. If you have questions regarding the applicability 
of these procedures to a particular entity, consult the person listed 
in the preceding FOR FURTHER INFORMATION CONTACT section of this 
Preamble.

B. Tips for Preparing Your Comments

    When submitting comments, remember to:
    (a) Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    (b) Follow directions for commenting according to the ADDRESSES 
section of this Preamble.
    (c) Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    (d) Describe any assumptions and provide any technical information 
and/or data that you used.
    (e) If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    (f) Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    (g) Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    (h) Make sure to submit your comments by the comment period 
deadline identified.

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II. Introduction

A. Statutory Authority

    The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321-4347, establishes the federal government's national policy for 
protection of the environment. The Council on Environmental Quality 
Regulations (CEQ Regulations) at 40 CFR parts 1500 through 1508 
establish procedures implementing this national policy. The CEQ 
Regulations (40 CFR 1505.1) require federal agencies to adopt and, as 
needed, revise their own NEPA implementing procedures to supplement the 
CEQ Regulations and to ensure their decision-making processes are 
consistent with NEPA.
    Executive Order 12114, ``Environmental Effects Abroad of Major 
Federal Actions,'' (see 46 FR 3364) is the authority and basis for 
EPA's policy, criteria, and procedures contained in the portion of 
today's proposed rule entitled ``Assessing the Environmental Effects 
Abroad of EPA Actions.''

B. Background

    The Environmental Protection Agency initially established its NEPA 
regulations as 40 CFR Part 6 (Part 6), Subparts A through H on April 
14, 1975 (see 40 FR 16823). Subpart I was added on January 11, 1977 
(see 42 FR 2450). On November 29, 1978, the Council on Environmental 
Quality (CEQ) promulgated regulations establishing uniform federal 
procedures for implementing NEPA (see 43 FR 55978). Section 103 of NEPA 
and the CEQ Regulations require federal agencies to adopt appropriate 
NEPA procedures to supplement those regulations. As a result, EPA 
amended its NEPA regulations on November 6, 1979, to make them 
consistent with the CEQ Regulations (see 44 FR 64177).
    Under the Agency's 1979 Part 6 amendments, Subparts A through D 
described general NEPA procedures for preparing environmental reviews 
applicable to all EPA NEPA actions and established certain categorical 
exclusions. Subpart A contained an overview of EPA's NEPA regulations, 
including environmental impact statement (EIS) requirements for EPA 
legislative proposals and requirements for environmental information 
documents (EIDs) to be submitted to EPA by applicants, grantees, or 
permitees as required in Subparts E through I. Subpart B described the 
requirements for the content of an EIS prepared pursuant to Subparts E 
through I. Subpart C described the requirements for coordination of 
applicable environmental laws and certain executive orders with the 
environmental review procedures. It provided a brief recitation of the 
provisions of those laws or executive orders and EPA implementing 
procedures. Subpart D described the public information requirements to 
be undertaken in conjunction with the environmental review requirements 
under Subparts E through I. Subparts E through I established specific 
criteria for conducting environmental reviews for particular types of 
actions and categorical exclusions applicable to those actions. 
Specifically, Subpart E established NEPA environmental review 
procedures for the Wastewater Treatment Construction Grants Program of 
the Clean Water Act; Subpart F for the issuance of new source NPDES 
permits; Subpart G for research and development program actions; 
Subpart H for solid waste demonstration projects; and Subpart I for EPA 
actions for construction of special purpose facilities or facility 
renovations. EPA's ``Statement of Procedures on Floodplain Management 
and Wetlands Protection,'' dated January 5, 1979, was included as 
Appendix A to clarify the effective date and to emphasize the 
importance of this Statement of Procedures.
    In 1981, Subpart J, ``Assessing the Environmental Effects Abroad of 
EPA Actions,'' was added as EPA's general policy, criteria, and 
procedures for implementing Executive Order 12114, ``Environmental 
Effects Abroad of Major Federal Actions'' (see 46 FR 3364). Executive 
Order 12114 does not impose NEPA compliance requirements on Federal 
agencies, rather it ``furthers the purpose'' of NEPA and identifies the 
documents, including environmental impact statements (EISs) and 
environmental assessments (EAs), to be used when conducting assessments 
under Executive Order 12114.
    In 1982, the Agency revised its Part 6 NEPA regulations by removing 
CEQ from the consultation process on requests to segment wastewater 
treatment facility construction grant projects (see 47 FR 9831). In 
1983, EPA revised the categorical exclusions and the criteria for not 
granting an exclusion, and corrected a factual error on the 
responsibility for preparing a final EA (see 48 FR 1012).
    In 1985, the Agency promulgated procedural amendments and minor 
substantive amendments to its Part 6 NEPA regulations to accommodate 
changes in EPA's regulations for the construction grants program found 
at 40 CFR Part 35 (see 50 FR 26310). The modifications in the 
construction grants program changed the process that EPA grant 
recipients followed in planning and building wastewater treatment 
facilities. The amendments to Subpart E and related sections of the EPA 
NEPA regulations streamlined and clarified the criteria and process for 
an environmental review and for preparing an EIS, including 
partitioning of the review process and the public involvement 
requirements. These amendments also included Office name and technical 
changes to reflect an Agency reorganization.
    In 1986, EPA amended its Part 6 NEPA regulations to clarify and 
streamline procedures for partitioning and re-evaluating environmental 
reviews, making categorical exclusion determinations, providing for 
public participation, and producing and distributing environmental 
review documents; and to make various technical changes including 
Office name changes due to reorganizations.
    In 1991, EPA amended Subpart G of its Part 6 NEPA regulations by 
adding categorical exclusions and a list of projects that normally 
result in preparation of EAs; revising the criteria used to determine 
whether preparation of an EIS is required; revising the provision 
directing coordination, where feasible, with other EPA program reviews; 
and clarifying the NEPA review process for Office of Research and 
Development actions (see 56 FR 20541). In addition, EPA amended Subpart 
D by eliminating the requirement for public notice of categorical 
exclusion determinations for all EPA programs except the Wastewater 
Treatment Construction Grants Program.
    In 1993, EPA amended its Part 6 NEPA regulations to address the 
requirement that EPA actions conform to any air quality State 
implementation plan, and to clarify that air pollution control 
requirements need to be considered when performing NEPA reviews for 
wastewater treatment works (see 58 FR 63214).

C. Exemptions From NEPA for Certain EPA Actions

    Certain EPA actions are exempt from the procedural requirements of 
NEPA, including the CEQ Regulations. Congress has provided specific 
statutory exemptions for certain EPA actions taken under the Clean 
Water Act (CWA) and all EPA actions taken under the Clean Air Act 
(CAA). Specifically, under CWA Section 511(c)(1), EPA is exempt from 
preparing EISs for all actions taken under the CWA except for issuance 
of NPDES permits under CWA Section 402 for ``new sources'' as defined 
in Section 306, and for Federal financial assistance provided for 
assisting construction of publicly owned

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treatment works under CWA Section 201 (33 U.S.C. 1371(c)). Under the 
Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C. 
793(c)(1)), all actions taken under the CAA are deemed not to be major 
federal actions significantly affecting the environment.
    Further, the courts have exempted certain EPA actions from the 
procedural requirements of NEPA through the functional equivalence 
doctrine. Under the functional equivalence doctrine, courts have found 
EPA to be exempt from the procedural requirements of NEPA for certain 
actions under the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA); the Resource Conservation and Recovery Act (RCRA), the Toxic 
Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and 
the Marine Protection, Research, and Sanctuaries Act (MPRSA). The 
courts reasoned that EPA actions under these statutes are functionally 
equivalent to the analysis required under NEPA because they are 
undertaken with full consideration of environmental impacts and 
opportunities for public involvement. See, e.g., EDF v. EPA, 489 F.2d 
1247 (D.C. Cir. 1973) (FIFRA); State of Alabama v. EPA, 911 F. 2d 499 
(11th Cir. 1990) (RCRA); Warren County v. North Carolina, 528 F. Supp. 
276 (E.D. N.C. 1981) (TSCA); Western Nebraska Resources Council v. U.S. 
EPA, 943 F.2d 867 (8th Cir. 1991) (SDWA); Maryland v. Train, 415 F. 
Supp. 116 (D. Md. 1976) (MPRSA).
    Agency actions exempt from the requirements of NEPA would remain 
exempt under this proposed rule. If a question arises regarding the 
applicability of the NEPA requirements to certain proposed actions, the 
Responsible Official should consult with the NEPA Official and the 
Office of General Counsel.

D. EPA's Voluntary NEPA Policy and Procedures

    In 1974, EPA Administrator Russell Train determined that the Agency 
could voluntarily prepare EISs for certain regulatory activities that 
were exempt from NEPA. In 1998, Administrator Carol Browner amended 
this policy to permit the preparation of non-EIS NEPA documents for 
certain EPA regulatory actions. The Agency's current ``Notice of Policy 
and Procedures for Voluntary Preparation of National Environmental 
Policy Act (NEPA) Documents'' (see 63 FR 58045) sets out the policy and 
procedures EPA uses when preparing environmental review documents under 
the Voluntary NEPA Policy. This proposed rule does not make any changes 
to the voluntary NEPA policy and procedures. However, the proposed rule 
can serve as a framework for the preparation of voluntary NEPA 
documents.

III. Purpose and Policy

    This proposed rule has two purposes. The first purpose is to update 
and revise EPA's procedures for implementing the procedural 
requirements of NEPA and the CEQ Regulations by restructuring and 
standardizing these regulations (see Section IV below). The revised 
NEPA procedures would continue to be consistent with the declaration of 
national environmental policy as stated in Title I, Section 101(a) of 
NEPA (42 U.S.C. 4331(a)). Under the proposed NEPA rule, EPA's 
environmental review process would continue to ensure that, when 
required, environmental information is available and taken into account 
before EPA makes a finding of no significant impact or signs a Record 
of Decision. The NEPA environmental review process would continue to 
include: identification of alternatives to the proposed action, 
description of the affected environment, and analyses of the 
environmental consequences. For proposed actions subject to NEPA, EPA 
would continue to prepare environmental impact statements (EISs) for 
major federal actions significantly affecting the quality of the human 
environment. As part of its NEPA environmental review process, EPA also 
would continue to determine the applicability of other laws and 
executive orders early in the planning process and incorporate 
applicable requirements as early in the NEPA review process as 
possible. EPA's NEPA implementing regulations will be amended in 
consultation with the Council on Environmental Quality (see 40 CFR 
1507.3(a)).
    The second purpose of today's proposed rule is to make minor, 
technical amendments to Subpart D, ``Assessing the Environmental 
Effects Abroad of EPA Actions,'' which contains the Agency's procedures 
for implementing Executive Order 12114, ``Environmental Effects Abroad 
of Major Federal Actions.'' The scope of this portion of the proposed 
regulations is limited to these minor, technical changes. These minor, 
technical changes are described in the Preamble in Section IV.C. and 
include amendments to: Re-designate the subpart for EPA's procedures 
implementing Executive Order 12114; update office names and titles and 
the references to EPA's Voluntary NEPA Policy and NEPA implementing 
procedures; and correct cross-references and typographical errors.

IV. Proposed Changes to the Regulations and Objectives of These 
Proposed Changes

A. Proposed Revision to the Title for EPA's Regulations at Part 6

    EPA proposes to retitle its regulations at Part 6 to clarify that 
the proposed rule includes two sets of Agency procedures: the Agency's 
procedures for implementing the National Environmental Policy Act; and 
the Agency's procedures for implementing Executive Order 12114, 
``Environmental Effects Abroad of Major Federal Actions.'' Both sets of 
implementing procedures are currently, and will remain, in Part 6. 
However, EPA believes the proposed amended title will clarify that the 
procedures implementing Executive Order 12114 are not based on NEPA 
authority and do not impose NEPA compliance requirements on EPA.

B. Restructuring and Standardizing EPA's NEPA Implementing Regulations

    Restructuring and standardizing EPA's NEPA implementing procedures 
will clarify that the regulations apply to all proposed actions that 
are subject both to EPA's control and responsibility and NEPA, 
including actions not specifically addressed in the current regulations 
(e.g., certain grants awarded for special projects identified in the 
STAG account authorized through the Agency's annual Appropriations 
Act). The proposed revisions also take into account the environmental 
review exemptions to NEPA established by Congress and the courts.
    This proposed rule would restructure and amend EPA's NEPA 
implementing regulations in order to: (1) Consolidate and standardize 
the procedural provisions and requirements of the Agency's 
environmental review process under NEPA; (2) clarify the general 
procedures associated with categorical exclusions, consolidate the 
categories of actions subject to categorical exclusion, amend existing 
and add new categorical exclusions, and consolidate and amend existing 
and add new extraordinary circumstances; (3) consolidate and amend the 
listing of actions that generally require an EIS; (4) clarify the 
procedural requirements for consideration of applicable environmental 
review laws and executive orders; and (5) incorporate other proposed 
revisions consistent with the CEQ Regulations. Preamble sections IV.B.1 
through 5 summarize the objectives of these proposed changes.

[[Page 76086]]

1. Consolidate and Standardize the Procedural Provisions and 
Requirements of the Agency's Environmental Review Process Under NEPA
    Currently, as discussed in Section II above, EPA's NEPA 
implementing regulations apply, by subpart, to specific actions. The 
proposed regulations would consolidate the definitions and 
environmental review procedures in a single set of definitions and 
environmental review procedures applicable to all EPA proposed actions 
subject to NEPA.
    The proposed regulations also would consolidate the notification 
and public participation procedures that apply to all EPA proposed 
actions subject to NEPA. The proposed regulations no longer require a 
public meeting or hearing as part of the NEPA process. However, 
consistent with the CEQ Regulations (40 CFR 1506.6(c)), the Agency will 
hold meetings and/or hearings when appropriate or in accordance with 
statutory requirements. This does not diminish the Agency's commitment 
to NEPA's requirement for full public disclosure. The proposed 
regulations also state the conditions for notification of and 
consultation with state and local governments, and federally-recognized 
Indian tribes (tribes) and for public participation.
2. Clarify the General Procedures Associated With Categorical 
Exclusions; Consolidate the Categories of Actions Subject to 
Categorical Exclusion; Amend Existing and Add New Categorical 
Exclusions; and Consolidate and Amend Existing and Add New 
Extraordinary Circumstances
    Currently, EPA's NEPA implementing regulations include general and, 
by subpart, action-specific categorical exclusions and extraordinary 
circumstances. The proposed regulations would consolidate the 
categorical exclusions and extraordinary circumstances in a single 
location. Thus, the procedures for determining if a proposed action 
fits within a categorical exclusion or involves any extraordinary 
circumstances would be applicable to all EPA actions subject to NEPA.
    The proposed regulations also propose amending existing and adding 
new categories of actions for categorical exclusion as discussed in 
Section V below, Proposed Amended and New Categories of Actions 
Eligible for Categorical Exclusion; Amended and New Extraordinary 
Circumstances; and Amended Listing of Actions that Generally Require an 
Environmental Impact Statement.
3. Consolidate and Amend the Listing of Actions That Generally Require 
an Environmental Impact Statement
    Currently, some subparts of EPA's NEPA implementing regulations 
list proposed actions that generally require EISs, and one also lists 
proposed actions that generally require EAs. The proposed regulations 
would consolidate and amend the criteria for actions that generally 
require EISs. These criteria for actions that generally require EISs in 
the proposed regulations would be applicable to all EPA actions subject 
to NEPA.
4. Clarify the Procedural Requirements for Consideration of Applicable 
Environmental Review Laws and Executive Orders
    Currently, Subpart C of EPA's NEPA implementing regulations focuses 
on integrating the requirements of applicable environmental laws and 
executive orders with environmental review requirements independent of 
NEPA with the Agency's NEPA environmental review procedures. Subpart C 
also provides a brief outline of the provisions of certain 
environmental laws and executive orders and EPA implementing 
procedures, including but not limited to: The National Historic 
Preservation Act (16 U.S.C. 470 et seq.); the Archaeological and 
Historic Preservation Act (16 U.S.C. 469 et seq.); Executive Order 
11593, ``Protection and Enhancement of the Cultural Environment;'' the 
Historic Sites Act (16 U.S.C. 461 et seq.); Executive Order 11990, 
``Protection of Wetlands;'' Executive Order 11988, ``Floodplain 
Management;'' the Farmland Protection Policy Act (7 U.S.C. 4201 et 
seq.); the Coastal Zone Management Act (16 U.S.C. 1451 et seq.); the 
Wild and Scenic Rivers Act (16 U.S.C. 1274 et seq.); the Coastal 
Barrier Resources Act (16 U.S.C. 3501 et seq.); the Fish and Wildlife 
Coordination Act (16 U.S.C. et seq.); the Endangered Species Act (16 
U.S.C. 1531 et seq.); and air quality conformity pursuant to the Clean 
Air Act (42 U.S.C. 7476(c) and 42 U.S.C. 7616). Appendix A provides 
EPA's ``Statement of Procedures on Floodplain Management and Wetlands 
Protection.'' The proposed NEPA regulations would remove the outlines 
and Appendix A, and replace them with the general procedural 
requirement to determine, to the fullest extent possible, the 
applicability of other environmental laws and executive orders early in 
the planning process, and to incorporate applicable requirements as 
early in the NEPA review process as possible. This general procedural 
requirement would be applicable to all EPA actions subject to NEPA. 
This revision also would eliminate the need to amend the regulations 
whenever the laws and executive orders change. Moreover, today, the 
environmental review laws, regulations, and executive orders are 
available through the Internet (for example, many executive orders are 
linked through CEQ's Web site on NEPAnet at: http://ceq.eh.doe.gov/nepa/regs/executiveorders.htm). Guidance documents have been issued by 
the responsible oversight agencies, CEQ, and EPA for many of these 
including those frequently addressed in a NEPA review. (For example, 
see: CEQ guidance documents available at: http://ceq.eh.doe.gov/nepa/regs/guidance.html; and EPA guidance such as ``Guidance for 
Incorporating Environmental Justice Concerns in EPA's NEPA Compliance 
Analyses,'' EPA, April 1998.)
5. Other Proposed Revisions Consistent With the CEQ Regulations
    Consolidate and standardize the definitions in the existing 
regulations. The proposed NEPA implementing regulations would 
consolidate and standardize the definitions in EPA's current NEPA 
regulations, as well as adding new definitions. Currently, EPA's NEPA 
implementing regulations apply, by subpart, to specific actions. The 
proposed regulations would consolidate the definitions in a single set 
of definitions applicable to all EPA actions subject to NEPA. For 
example, the proposed NEPA rule defines the term ``action,'' and 
replaces the terms ``grantee,'' ``applicant'' and ``permit applicant'' 
with the single defined term ``applicant.'' The current regulations 
define and list by title the specific EPA officials responsible for the 
various program and action-specific actions identified by subpart. In 
the proposed rule, the Responsible Official would be defined simply and 
without title as the EPA official responsible for compliance with NEPA 
for individual actions thereby precluding the need for technical change 
to the regulations whenever there is an Agency reorganization and/or 
change to the title of an organizational unit or management position. 
Generally, the Responsible Official is an Assistant Administrator or a 
Regional Administrator, and the NEPA Official is the EPA official 
responsible for overall review of EPA's NEPA compliance (currently the 
Director of the Office of Federal Activities within

[[Page 76087]]

the Office of Enforcement and Compliance Assurance).
    Delegation of responsibilities. Currently, Subpart G of EPA's NEPA 
implementing regulations provides for delegation of responsibilities 
for carrying out the environmental review process by EPA's Office of 
Research and Development; other subparts are silent regarding 
delegation of responsibilities. In order to clarify and standardize the 
regulations, the proposed NEPA rule would standardize the delegation of 
responsibilities by stating that the NEPA-related responsibilities may 
be delegated to a level no lower than the Branch Chief or equivalent 
organizational level.
    Clarify the general requirements for an environmental assessment. 
Consistent with the CEQ Regulations at Sec. Sec.  1501.3 and 1508.9, 
and considering the information contained in ``The NEPA Task Force 
Report to the Council on Environmental Quality, Modernizing NEPA 
Implementation'' (September 2003), the proposed NEPA regulations would 
include specific elements that generally must be addressed in an EA 
such as the need for the proposed action, the alternatives considered, 
description of the affected environment, and the environmental impacts 
of the proposed action and the alternatives.
    Consolidate and standardize the procedures that apply to 
applicants. Currently, EPA's NEPA implementing regulations include, by 
subpart, procedures applicable to certain grantees and new source NPDES 
permit applicants. These procedures require those grantees and permit 
applicants (together referred to as applicants) to submit information 
to the Responsible Official for use in EPA's environmental review 
process. The proposed NEPA regulations would consolidate and 
standardize these procedures in Subpart C, ``Requirements for 
Environmental Information Documents and Third-Party Agreements.'' These 
procedures would be applicable to all applicant-proposed actions 
subject to NEPA.
    Compliance with the proposed NEPA regulations would be the 
responsibility of the Responsible Official. The proposed NEPA 
regulations require the applicant to submit an environmental 
information document (EID) unless the action is categorically excluded 
or the applicant prepares and submits a draft EA and supporting 
documents. As appropriate and according to the proposed procedures in 
Subpart C, the applicant would be able to submit information to the 
Responsible Official regarding the applicability of a categorical 
exclusion to the applicant's pending action. The Responsible Official 
would notify the applicant if the Responsible Official determines that 
the action is categorically excluded; if EPA needs additional 
information to support the application of a categorical exclusion; or 
if the submitted information does not support the application of a 
categorical exclusion and an EA or an EIS and supporting documents 
would be required for the project. The Responsible Official also would 
notify the applicant if an EID would not be required. Unless so 
notified or unless the applicant and Responsible Official implement a 
third-party agreement, the applicant, in consultation with the 
Responsible Official, would prepare an EID that is of sufficient scope 
to enable the Responsible Official to prepare an EA or, if necessary, 
an EIS.

C. Proposed Amendments to EPA's Procedures for Implementing Executive 
Order 12114

    Today's proposed rule also includes minor, technical amendments to 
the Agency's procedures for implementing Executive Order 12114, 
``Environmental Effects Abroad of Major Federal Actions,'' included in 
EPA's proposed regulations in Subpart D, ``Assessing the Environmental 
Effects Abroad of EPA Actions.'' These proposed amendments are 
described below. For this subpart, the scope of the proposal is limited 
to these minor, technical amendments and EPA is requesting comments 
only on these amendments.
1. Amendment to Re-Designate the Subpart for EPA's Procedures 
Implementing Executive Order 12114
    Currently, EPA's procedures implementing Executive Order 12114 are 
in Part 6 at Subpart J. As part of the overall restructuring of Part 6, 
these procedures are proposed to be re-designated as Subpart D. The 
sections in this subpart are proposed to be re-numbered accordingly; 
Sec.  6.1001 would become Sec.  6.400, Sec.  6.1002 would become Sec.  
6.401, Sec.  6.1003 would become Sec.  6.402, Sec.  6.1004 would become 
Sec.  6.403, Sec.  6.1005 would become Sec.  6.404, Sec.  6.1006 would 
become Sec.  6.405, and Sec.  6.1007 would become Sec.  6.406, 
respectively and in accordance with Federal Register numbering, in the 
proposed rule.
2. Amendments To Update Office Names and Titles
    In 1981 when Subpart J was included in Part 6, the Office of 
Environmental Review (OER) housed the EPA official responsible for 
overall review of EPA's NEPA compliance as required by 40 CFR 
1507.2(a). Today, this responsibility resides in the Office of Federal 
Activities (OFA). The proposed rule contains amendments to update this 
information. Likewise, the proposed rule also contains amendments to 
update other office names and titles. The following proposed office 
name and title amendments are identified according to the paragraph 
numbers in the proposed rule; e.g., Sec.  6.401(a)(5) in the proposed 
rule corresponds to Sec.  6.1002(a)(5) in the current rule, Sec.  
6.403(b)(1) in the proposed rule corresponds to Sec.  6.1004(b)(1) in 
the current rule, Sec.  6.405 in the proposed rule corresponds to Sec.  
6.1006 in the current rule, and Sec.  6.406 in the proposed rule 
corresponds to Sec.  6.1007 in the current rule. In Sec.  6.401(a)(5), 
``OER'' would be amended to ``OFA''. In Sec.  6.403(b)(1), ``The 
Assistant Administrator for Water and Waste Management'' would be 
amended to ``The Assistant Administrator for Water''. In Sec.  6.405, 
``the Director, Office of Environmental Review (OER)'' would be amended 
to ``the Director, Office of Federal Activities (OFA)''; ``Director 
Office of International Activities (OIA)'' would be amended to 
``Assistant Administrator, Office of International Affairs (OIA)''; 
``Director, OER'' would be amended to ``Director, OFA''; and 
``Director, OIA'' would be amended to ``Assistant Administrator, OIA''. 
In Sec.  6.406, paragraphs (a) through (c), ``OER'' would be amended to 
``OFA''.
3. Amendment to Reference in the Executive Order 12114 Implementing 
Procedures to EPA's Voluntary NEPA Policy
    Currently, EPA's procedures for implementing Executive Order 12114 
reference EPA's Voluntary EIS Policy dated October 21, 1974. The Agency 
revised this policy in 1998. For this reason and to clarify the 
applicability of these procedures to ocean dumping activities in the 
global commons under section 102(a) of the MPRSA, in Sec.  6.403(b)(1), 
the sentences: ``For ocean dumping site designations prescribed 
pursuant to section 102(c) of the MPRSA and 40 CFR part 228, EPA shall 
prepare an environmental impact statement consistent with the 
requirements of EPA's Procedures for the Voluntary Preparation of 
Environmental Impact Statements dated October 21, 1974 (see 30 FR 
37419). Also EPA shall prepare an environmental impact statement for 
the establishment or revision of criteria under section 102(a) of 
MPRSA.'' would be amended to: ``For ocean dumping site designations 
prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228, 
and for the establishment or revision of criteria under section

[[Page 76088]]

102(a) of the MPRSA, EPA shall prepare appropriate environmental 
documents consistent with EPA's Notice of Policy and Procedures for 
Voluntary Preparation of National Environmental Policy Act (NEPA) 
Documents dated October 29, 1998 (see 63 FR 58045).'' This proposed 
amendment is identified according to the paragraph number in the 
proposed rule; e.g., Sec.  6.403(b)(1) in the proposed rule corresponds 
to Sec.  6.1004(b)(1) in the current rule.
4. Amendment to Reference in the Executive Order 12114 Implementing 
Procedures to EPA's NEPA Implementing Procedures
    Currently, EPA's procedures for implementing Executive Order 12114 
reference Sec.  6.506 of EPA's current NEPA implementing procedures. 
Because EPA proposes to restructure its NEPA implementing procedures, 
in Sec.  6.403(d), ``40 CFR 6.506 details'' would be amended to ``40 
CFR part 6, subparts A through C, detail''. This proposed amendment is 
identified according to the paragraph number in the proposed rule; 
e.g., Sec.  6.403(d) in the proposed rule corresponds to Sec.  
6.1004(d) in the current rule.
5. Amendments for Correction of Cross-References and Typographical 
Errors
    In Sec.  6.400(a), ``the Marine Protection Research and Sanctuaries 
Act'' would be amended to ``the Marine Protection, Research, and 
Sanctuaries Act''. In Sec.  6.401(a), ``of by EPA as set forth below:'' 
would be amended to ``of EPA as follows:''. In Sec.  6.401(a)(5), 
``(see Sec.  6.1007(c)).'' would be amended to ``(see Sec.  
6.406(c)).'' In Sec.  6.401, ``(b) [Reserved].'' would be added to meet 
the Federal Register requirement for a second paragraph in this 
section. In Sec.  6.403(d), ``or water quality agreements'' would be 
amended to ``of water quality agreements'' in the sentence, ``Where 
water quality impacts identified in a facility plan are the subject of 
water quality agreements with Canada or Mexico, nothing in these 
regulations shall impose on the facility planning process coordination 
and consultation requirements in addition to those required by such 
agreements.'' These proposed amendments are identified according to the 
paragraph numbers in the proposed rule; e.g., Sec.  6.400(a) in the 
proposed rule corresponds to Sec.  6.1001(a) in the current rule, Sec.  
6.401(a) in the proposed rule corresponds to Sec.  6.1002(a) in the 
current rule, Sec.  6.401(a)(5) in the proposed rule corresponds to 
Sec.  6.1002(a)(5) in the current rule, Sec.  6.401 in the proposed 
rule corresponds to Sec.  6.1002 in the current rule, and Sec.  
6.403(d) in the proposed rule corresponds to Sec.  6.1004(d) in the 
current rule.

V. Proposed Amended and New Categories of Actions Eligible for 
Categorical Exclusion; Amended and New Extraordinary Circumstances; and 
Amended Listing of Actions That Generally Require an Environmental 
Impact Statement

    The Environmental Protection Agency (EPA or Agency) is proposing 
amendments to its procedures for implementing the requirements of the 
National Environmental Policy Act of 1969 (NEPA). The proposed rule 
also includes minor, technical amendments to the Agency's procedures 
for implementing Executive Order 12114, ``Environmental Effects Abroad 
of Major Federal Actions.''
    Pursuant to CEQ's Regulations that are applicable to all Federal 
agencies for implementing the procedural provisions of NEPA, Federal 
agencies must, to the fullest extent possible, reduce paperwork and 
accumulation of extraneous background data and emphasize real 
environmental issues and alternatives. (40 CFR 1500.2(b)) CEQ's 
Regulations (40 CFR 1507.3(b)(2)(ii)) provide that agencies are to 
adopt their own implementing procedures to supplement CEQ's NEPA 
implementing procedures, including specific criteria for and 
identification of classes of action which normally do not require 
either an environmental impact statement or an environmental assessment 
(e.g., categorical exclusions (see 40 CFR 1508.4)).
    As part of the amendments to its NEPA implementing regulations, the 
Agency is proposing to amend existing and add new categories of actions 
eligible for categorical exclusion. Consistent with the CEQ Regulations 
at Sec.  1508.4, the proposed rule would define ``categorical 
exclusion'' to mean ``a category of actions that does not individually 
or cumulatively have a significant effect on the human environment * * 
*'' and have been found by EPA to have no such effect. The proposed 
rule would require that to find that a proposed action is categorically 
excluded, EPA's Responsible Official must determine that the proposed 
action fits within a categorical exclusion listed in the proposed 
regulations, and the proposed action does not involve any extraordinary 
circumstances. Some of EPA's proposed new categorical exclusions are 
essentially the same as categorical exclusions of other Federal 
agencies; others are more specific to EPA.
    Consistent with the CEQ Regulations at Sec.  1508.4, the proposed 
rule would define ``extraordinary circumstances'' to mean ``those 
circumstances * * * that may cause a significant environmental effect 
such that an action that otherwise meets the requirements of a 
categorical exclusion may not be categorically excluded.'' Like its 
current NEPA implementing regulations, EPA's proposed rule includes a 
list of extraordinary circumstances. Some are generally the same as 
those in its current NEPA implementing regulations, some are new, and 
some are proposed amendments based on current extraordinary 
circumstances, the criteria for actions that generally require 
environmental impact statements (EISs), and NEPA's policy direction to 
emphasize real environmental issues and alternatives. The extraordinary 
circumstances would be consolidated in the proposed rule. As required 
by CEQ's Regulations, the proposed rule also includes a consolidated 
listing of actions that generally require an EIS (see 40 CFR 
1507.3(b)(2)(i)).
    The proposed amendments to EPA's NEPA implementing regulations 
include: (1) Consolidating and standardizing the procedural provisions 
and requirements of the Agency's environmental review process under 
NEPA; (2) clarifying the general procedures associated with categorical 
exclusions, consolidating the categories of actions subject to 
categorical exclusion, amending existing and adding new categorical 
exclusions, and consolidating and amending existing and adding new 
extraordinary circumstances; (3) consolidating and amending the listing 
of actions that generally require environmental impact statements; (4) 
clarifying the procedural requirements for consideration of applicable 
environmental review laws and executive orders; and (5) incorporating 
other proposed revisions consistent with CEQ's Regulations. The general 
reasons for the amended and new categorical exclusions, extraordinary 
circumstances, and criteria for actions that generally require an EIS 
are as follows:
(1) Consolidation and standardization of the procedural provisions and 
requirements of the Agency's environmental review process under NEPA
    The proposed regulations would consolidate and standardize the 
environmental review process applicable to all EPA actions subject to 
NEPA, including those actions now specifically addressed in the current 
regulations and other actions subject to

[[Page 76089]]

NEPA but not specifically addressed in the current regulations (e.g., 
certain grants awarded for special projects identified in the State and 
Tribal Assistance Grants (STAG) account authorized by Congress through 
the Agency's annual Appropriations Act).
(2) Clarify the general procedures associated with categorical 
exclusions, consolidate the categories of actions subject to 
categorical exclusion, amend existing and add new categorical 
exclusions, and consolidate and amend existing and add new 
extraordinary circumstances
    Currently, EPA's NEPA implementing regulations include general and, 
by subpart, program-specific categorical exclusions and extraordinary 
circumstances. The proposed regulations would consolidate the 
categorical exclusions and extraordinary circumstances in a single 
location. Thus, the procedures for determining if a proposed action 
fits within a categorical exclusion or involves any extraordinary 
circumstances would be the same for all EPA actions subject to NEPA.
(3) Consolidate and amend the listing of actions that generally require 
an environmental impact statement
    Currently, some subparts of EPA's NEPA implementing regulations 
list actions that generally require EISs, and one also lists specific 
actions that generally require EAs. The proposed regulations would 
consolidate and amend the criteria for actions that generally require 
EISs. These criteria for actions that generally require EISs in the 
proposed regulations would be applicable to all EPA actions subject to 
NEPA.
    EPA's NEPA regulations apply to the actions and decisions of EPA 
that are subject to NEPA's procedural requirements in order to ensure 
that environmental information is available to the Agency's decision-
makers and the public before decisions are made and before actions are 
taken. This includes actions such as the award of wastewater treatment 
construction grants under Title II of the Clean Water Act, EPA's 
issuance of new source National Pollutant Discharge Elimination System 
(NPDES) permits, certain research and development projects, EPA actions 
involving renovations at or new construction of EPA facilities, and 
certain grants awarded for special projects identified in the STAG 
account authorized by Congress through the Agency's annual 
Appropriations Act. EPA actions subject to NEPA that are based on 
applicant proposals may include any of these except EPA actions for 
construction of special purpose facilities or facility renovations. As 
with EPA's current NEPA implementing regulations, compliance with the 
proposed NEPA regulations would be the responsibility of EPA's 
Responsible Officials and certain grant or permit applicants who must 
submit environmental information documentation to EPA for their 
proposed projects.
    Currently, EPA's NEPA implementing regulations apply, by subpart, 
to specific actions. For example, Subpart E applies to the award of 
wastewater treatment construction grants under Title II of the Clean 
Water Act, and Subpart F applies to EPA's environmental review process 
for issuance of new source NPDES permits. The proposed regulations 
would consolidate and standardize the environmental review process 
applicable to all EPA actions subject to NEPA, including those actions 
now specifically addressed in the current regulations and other actions 
subject to NEPA but not specifically addressed in the current 
regulations (e.g., certain grants awarded for special projects 
identified in the STAG account.) As with EPA's current regulations, the 
proposed regulations would supplement and be used in conjunction with 
the CEQ Regulations. Certain EPA actions are exempt from the procedural 
requirements of NEPA and would remain exempt under the proposed rule.
    EPA is proposing to consolidate and standardize the environmental 
review process applicable to all EPA actions subject to NEPA. As part 
of this process, EPA is consolidating the categories of actions 
eligible for categorical exclusion, and amending existing and adding 
new categorical exclusions. CEQ's Regulations state that Federal 
agencies must implement NEPA procedures, in part, ``to reduce paperwork 
and the accumulation of extraneous background data; and to emphasize 
real environmental issues and alternatives.'' (40 CFR 1500.2(b)) EPA 
believes that the proposed amended and identification of new 
categorical exclusions meets the intent of this NEPA policy as 
paperwork is reduced or eliminated for EPA's Responsible Officials and 
applicants. Likewise, EPA's attention will be focused on proposed 
actions with real environmental issues and the associated analysis of 
alternatives, including mitigation measures, that will eliminate or 
reduce the project's environmental impacts.
    The NEPA Task Force Report to the Council on Environmental Quality 
notes that federal agency administrative records prepared to support 
categorical exclusions may include documentation of: Professional staff 
and expert opinions; research study results; past NEPA action records; 
and similar categorical exclusion actions by other agencies. 
[``Modernizing NEPA Implementation, Chapter 5, Categorical 
Exclusions,'' The NEPA Task Force Report to the Council on 
Environmental Quality, September 2003]
    Categorical Exclusions. EPA's proposed rule identifies 15 
categories of action eligible for categorical exclusion included in two 
listings. The first five proposed categorical exclusions, listed in the 
proposed rule at Sec.  6.204(a)(1)(i) through (v), are more likely to 
involve extraordinary circumstances and require the EPA Responsible 
Official to document a determination that a categorical exclusion 
applies. It is also EPA's opinion that these actions generally do not 
pose the potential for environmental impacts, and that confirmation 
there are no extraordinary circumstances would satisfy a determination 
that the use of a CE is appropriate. The first three of these are 
substantially the same as, or similar to, categorical exclusions in 
EPA's current NEPA implementing regulations with amendments to clarify 
their applicability to all EPA actions subject to NEPA and to clarify 
the intended applicability of the categorical exclusion. Proposed 
categorical exclusion (i) is similar to other Federal agencies' 
categorical exclusions (in general terms, minor rehabilitation). 
Proposed categorical exclusions (ii) and (iii) are specific to EPA and 
are similar to current EPA categorical exclusions; they have been 
documented as proposed categorical exclusions through past NEPA action 
records. Categorical exclusion (iv) is a proposed new categorical 
exclusion based on EPA's past NEPA action records. Categorical 
exclusion (v) is a proposed new categorical exclusion based on EPA's 
view that these actions for award of funds are not likely to have the 
potential for environmental impacts because the project for which the 
grant is being awarded was completed prior to the date the 
appropriation was enacted. However, EPA has discretion to award these 
grants, so they should be screened to determine whether there may be 
extraordinary circumstances associated with the completed project that 
should be addressed by conducting a NEPA review (e.g., avoidance or 
mitigation of potential impacts).
    It is EPA's view that the next 10 listed categorical exclusions are 
generally administrative in nature, do not generally involve 
extraordinary

[[Page 76090]]

circumstances and do not require the EPA Responsible Official to 
document a determination that a categorical exclusion applies (see 
proposed rule, Sec.  6.204(a)(2)(i) through (x)). One of these proposed 
categorical exclusions is substantially the same as one in EPA's 
current Part 6 rule. The other 9 are proposed new categorical 
exclusions, one of which incorporates three of the categorical 
exclusions in EPA's current NEPA implementing regulations. These 
proposed new categorical exclusions are generally for actions involving 
administrative procedures of the Agency. Most are similar to other 
Federal agencies' categorical exclusions, and some are also based on 
EPA's view that they are administrative in nature and generally do not 
involve extraordinary circumstances. In any case, even for these 
categorical exclusions, the Responsible Official would be required to 
ensure that none of the extraordinary circumstances applies to the 
action.
    EPA's ``Supporting Statement for Amended and New Categorical 
Exclusions, Extraordinary Circumstances, and Criteria for Actions that 
Generally Require EISs under 40 CFR Part 6: `Procedures for 
Implementing the National Environmental Policy Act and Assessing the 
Environmental Effects Abroad of EPA Actions' '' is available in the 
docket for this proposed rulemaking at www.regulations.gov and provides 
specific reasons for the proposed amended and new categorical 
exclusions included in EPA's proposed rule. EPA's documentation 
includes: references to EPA projects documented with environmental 
assessments and findings of no significant impact; reference to other 
Federal agencies with similar provisions for categorical exclusions; 
and statements of EPA's opinion.
    Extraordinary Circumstances. EPA's proposed rule identifies 10 
extraordinary circumstances in the proposed rule at Sec.  6.204(b)(1) 
through (10). Four of the proposed extraordinary circumstances are 
substantially the same as the eight in EPA's current regulations, and 
one of the proposed new extraordinary circumstances combines the 
elements of two in the current regulations. This proposed rule updates 
and amends the current extraordinary circumstances to clarify the 
conditions for their applicability, and consolidates all of the 
extraordinary circumstances into a single listing that would be 
applicable to all EPA actions subject to NEPA. EPA is also proposing 
six new extraordinary circumstances based on NEPA's policy direction to 
emphasize real environmental issues and alternatives and on 
consideration of EPA's proposed criteria for actions that generally 
require an EIS. EPA believes there is a relationship between the 
extraordinary circumstances and the criteria for actions that generally 
require EISs. EPA notes, however, that extraordinary circumstances are 
used to help the Responsible Official determine whether, or not, a 
categorical exclusion applies to the proposed action, and that the 
criteria for actions that generally require an EIS are criteria that 
generally, but not always, require an EIS.
    EPA's ``Supporting Statement for Amended and New Categorical 
Exclusions, Extraordinary Circumstances, and Criteria for Actions that 
Generally Require EISs under 40 CFR Part 6: `Procedures for 
Implementing the National Environmental Policy Act and Assessing the 
Environmental Effects Abroad of EPA Actions' '' is available in the 
docket for this proposed rulemaking at www.regulations.gov and provides 
specific reasons for the amended and new extraordinary circumstances 
included in the proposed rule. In summary, the intent is to standardize 
the essential concepts and combine the variously stated criteria into a 
consolidated set of extraordinary circumstances applicable to all EPA 
actions subject to NEPA. The proposed extraordinary circumstances are 
not intended to be a listing of requirements for preparing EISs. 
Rather, they are to be used to determine whether a categorical 
exclusion applies to the action. If not, the EPA Responsible Official 
may prepare an environmental assessment to determine whether a finding 
of no significant impact, or an EIS, is the appropriate NEPA document 
for the project, or the Responsible Official proceeds directly with 
preparing an EIS.
    Criteria for Actions that Generally Require EISs. EPA's proposed 
rule identifies 11 criteria for actions that generally require an EIS. 
These proposed criteria are substantially the same as, or similar to, 
16 of the 17 criteria in EPA's current NEPA implementing regulations. 
The criterion in EPA's current rule at Sec.  6.509(b), `the project is 
highly controversial,' is not included in the proposed criteria for 
actions that generally require EISs because EPA believes that the 
potential environmental impacts of such a project may not necessarily 
rise to the level of significance such that an EIS is generally 
required; e.g., an environmental assessment with provisions for 
mitigation could be the appropriate level of environmental review for 
the action. Further, as stated in the current rule, there is no direct 
tie to environmental impacts. Rather, EPA's proposed rule includes an 
extraordinary circumstance at Sec.  6.204(b)(8) that addresses this 
concept, including the potential for environmental impact.
    EPA's ``Supporting Statement for Amended and New Categorical 
Exclusions, Extraordinary Circumstances, and Criteria for Actions that 
Generally Require EISs under 40 CFR Part 6: `Procedures for 
Implementing the National Environmental Policy Act and Assessing the 
Environmental Effects Abroad of EPA Actions' '' is available in the 
docket for this proposed rulemaking at www.regulations.gov and provides 
specific reasons for the amended criteria for actions that generally 
require EISs included in the proposed rule. In summary, the intent is 
to standardize the essential concepts and combine the variously stated 
criteria into a consolidated set of criteria for actions that generally 
require EISs that are applicable to all EPA actions subject to NEPA. 
The proposed criteria are not intended to be a listing of requirements 
for preparing EISs in all cases. This is because not all actions 
examined under the criteria rise to the level of significance such that 
EISs are required (e.g., an environmental assessment with provisions 
for mitigation could be the appropriate level of environmental review 
for an action).
    In keeping with the public comment process for this proposed 
rulemaking, EPA is interested in the public's comments on these 
proposed amended and new categorical exclusions, extraordinary 
circumstances, and criteria for actions that generally require an EIS.

VI. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.
    In addition, EPA prepared an analysis of the potential costs and 
benefits associated with this action. A copy of the analysis is 
available in the docket for this action and the analysis is briefly 
summarized here. The total annual public reporting and recordkeeping 
burden for this collection of information is estimated at 48,147 hours 
and

[[Page 76091]]

$3,823,740 for contractor hours and costs, direct labor hours and 
costs, and O&M costs. This burden reflects the annual preparation of 
documentation for an anticipated 312 applicant-proposed projects that 
may be documented with a CE, or an EA/FONSI, or an EIS/ROD. Under the 
proposed rule, EPA assumes there will be approximately 300 grantee 
projects annually with about 60% of these projects documented with a 
CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one 
project will have an EIS/ROD completed during the 3-year period of this 
ICR. For permit applicants, EPA assumes there will be approximately 12 
projects annually with about 11 documented with an EA/FONSI. In 
addition, EPA estimates one project will have an EIS/ROD completed 
annually. None will be documented initially with a CE. Over a 3-year 
period, EPA anticipates 937 applicant-proposed projects with a 3-year 
total burden estimate of 144,440 hours and $11,471,220. Under the 
current rule, the individual cost for each type of documentation is the 
same. However, EPA estimates that 50% of grantee projects are 
documented with a CE, and 50% are documented with an EA/FONSI. 
Approximately one project will have an EIS/ROD completed per three-year 
period, and project estimates for permit applicants are approximately 
the same (11 projects documented with an EA/FONSI; 1 project documented 
with an EIS/ROD). The total burden of the current rule is 54,497 hours 
and $4,275,180. The proposed rule would decrease the number of hours 
spent on documentation by 6,350 hours, and would have an annual yearly 
savings of $451,440. Over a three-year period, the proposed rule would 
decrease burden by 19,050 hours and $1,354,320. Burden means the total 
time, effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.

B. Paperwork Reduction Act

    The information collection requirements of this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2243.02.
    The Environmental Protection Agency (EPA or Agency) is proposing to 
amend its procedures for implementing the requirements of the National 
Environmental Policy Act of 1969 (NEPA). Today's proposed rule also 
includes minor, technical amendments to the Agency's procedures for 
implementing Executive Order 12114, ``Environmental Effects Abroad of 
Major Federal Actions.''
    EPA is collecting information from certain applicants as part of 
the process of complying with either NEPA or Executive Order 12114. 
EPA's Executive Order 12114 procedures further the purpose of NEPA and 
provide that EPA may be guided by these procedures to the extent they 
are applicable. Therefore, when EPA conducts an environmental 
assessment pursuant to its Executive Order 12114 procedures, the Agency 
generally follows its NEPA procedures. For this ICR, applicant-proposed 
projects subject to either NEPA or Executive Order 12114 (and that are 
not addressed in other EPA programs' ICRs), are addressed through the 
NEPA assessment process.
    Those subject to the proposed rule include EPA employees who must 
comply with NEPA and certain grant and permit applicants who must 
submit environmental information to EPA for their proposed projects. 
The EPA Responsible Official is responsible for the environmental 
review process, including any categorical exclusion determination or 
the scope, accuracy, and contents of a final environmental assessment 
(EA) or environmental impact statement (EIS) and any associated 
documents. The applicant contributes by submitting environmental 
information to EPA as part of the environmental review process. The 
information collected from grant or permit applicants is one-time only 
on a per-project basis for EPA actions subject to NEPA that are based 
on applicant proposals. Grantees (primarily grants for special projects 
identified in EPA's State and Tribal Assistance Grants (STAG) account) 
or permit applicants (for new source NPDES permits issued by EPA) are 
required to provide environmental information to EPA as part of the 
environmental review process unless the EPA Responsible Official 
decides to prepare the NEPA documents without assistance from the 
applicant. If the applicant cannot afford to provide the required 
environmental information to EPA, then EPA would undertake the 
environmental review without input from the applicant. Further, 
grantees may be grant-eligible for certain costs associated with 
providing environmental information to EPA; permit applicants are not 
eligible for EPA financial assistance.
    The NEPA review for a project may result in a categorical exclusion 
(CE), or an EA documented with a finding of no significant impact (EA/
FONSI), or an EIS documented with a record of decision (EIS/ROD). (EPA 
assumes a project may be documented with a CE only for grantee-proposed 
projects. EPA does not anticipate that an initial new source NPDES 
permit application would be documented with a CE.) For any specific 
project, only one of these levels of documentation is generally 
prepared. Applicants may submit an environmental information document 
(EID) to EPA as part of the environmental review process. Alternately, 
an applicant may submit a draft EA or a draft EIS and supporting 
documents. Applicants may prepare and submit the information directly, 
or may enter a third-party contract agreement with EPA for preparation 
of an EA or EIS and supporting documentation. For purposes of 
determining the maximum costs to applicants for this ICR, EPA assumed 
that grant and permit applicants would expend time and contractor costs 
to submit: (1) Information to support application of a CE with 
environmental information prepared directly by the applicant's 
contractor; or (2) a draft EA and supporting documents prepared 
directly by the applicant's contractor; or (3) a draft and final EIS 
and supporting documents prepared by the applicant's contractor under a 
third-party contract agreement with EPA.
    Based on EPA's past experience, under the proposed rule, EPA 
anticipates there will be approximately 300 grantee projects annually 
with about 60% of these projects documented with a CE, and about 40% 
with an EA/FONSI. In addition, EPA estimates that one project (less 
than one percent of the total annual grantee projects) will have an 
EIS/ROD completed during the 3-year period of this ICR. For permit 
applicants, EPA assumes there will be approximately 12 projects 
annually with about 11 of the projects documented with an EA/FONSI. In 
addition, EPA estimates one project will have an EIS/

[[Page 76092]]

ROD completed annually. None will be documented initially with a CE. 
EPA estimated the one-time costs for applicants to prepare the 
environmental documentation by including contractor hours and costs, 
direct labor hours and costs, and O&M for documentation submitted to 
EPA to support a CE determination, or an EA/FONSI, or an EIS/ROD. For a 
grantee, EPA estimates an applicant's one-time costs for submitting 
environmental information will be: 45 hours and $3,292 for CE 
documentation, or 260 hours and $18,340 for EA/FONSI documentation, or 
2,840 hours and $324,480 for EIS/ROD documentation. For a permit 
applicant, EPA estimates an applicant's one-time costs for submitting 
environmental information will be: 460 hours and $53,940 for EA/FONSI 
documentation, or 2,840 hours and $328,880 for EIS/ROD documentation. 
These figures may vary depending on the complexity of issues associated 
with the project and the availability of relevant information, 
particularly for EISs. (For example, EPA's experience with a limited 
number of EISs has included one-time costs ranging from nominal for 
information submitted by letter to supplement an existing oil and gas 
extraction EIS to over a million dollars for new EISs for a mining 
project and an oil and gas extraction project with multiple complex 
issues.) EPA believes the calculations for this ICR are representative 
of most projects.
    For purposes of this ICR, the total annual public reporting and 
recordkeeping burden for this collection of information is estimated at 
48,147 hours and $3,823,740 for contractor hours and costs, direct 
labor hours and costs, and O&M costs. This burden reflects the annual 
submission of documentation for an anticipated 312 applicant-proposed 
projects that may be documented with a CE, or an EA/FONSI, or an EIS/
ROD. Under the proposed rule, EPA assumes there will be approximately 
300 grantee projects annually with about 60% of these projects 
documented with a CE, and about 40% with an EA/FONSI. In addition, EPA 
estimates that one project will have an EIS/ROD completed during the 3-
year period of this ICR. For permit applicants, EPA assumes there will 
be approximately 12 projects annually with about 11 documented with an 
EA/FONSI. In addition, EPA estimates one project will have an EIS/ROD 
completed annually. None will be documented initially with a CE. The 
total burden estimate for this ICR reduces the burden of the previous 
collection by 6,350 hours and $451,440 (the previous collection 
estimated that there were approximately 300 grantee projects annually 
with about 50% of these projects documented with a CE and about 50% 
documented with an EA/FONSI. Approximately one project completed an 
EIS/ROD during the 3-year period of the ICR). Over the 3-year period of 
this ICR, EPA anticipates 937 applicant-proposed projects with a 3-year 
total burden estimate of 144,440 hours and $11,471,220. For the 3-year 
period of this ICR, the proposed rule would reduce the total burden by 
19,050 hours and $1,354,320. Burden means the total time, effort, or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR Part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this proposed rule, 
which includes this ICR, under Docket ID number EPA-HQ-OECA-2005-0062. 
Submit any comments related to the ICR for this proposed rule to EPA 
and OMB. See ADDRESSEES section of the beginning of this notice for 
where to submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after December 19, 2006, a comment to OMB is 
best assured of having its full effect if OMB receives it by January 
18, 2007. The final rule will respond to any OMB or public comments on 
the information collection requirements contained in this proposal.

C . Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. We are 
proposing amendments to the Agency's procedures for implementing the 
requirements of the National Environmental Policy Act of 1969 (NEPA). 
This proposed rule also includes minor, technical amendments to the 
Agency's procedures for implementing Executive Order 12114, 
``Environmental Effects Abroad of Major Federal Actions.''
    Certain applicants must submit environmental information to EPA as 
part of the process of complying with either NEPA or Executive Order 
12114. EPA's Executive Order 12114 procedures further the purpose of 
NEPA and provide that EPA may be guided by these procedures to the 
extent they are applicable. Therefore, when EPA conducts an 
environmental assessment pursuant to its Executive Order 12114 
procedures, the Agency generally follows its NEPA procedures.
    This proposed rule is applicable to certain EPA actions subject to 
NEPA, including certain applicant-proposed projects. Because the 
projects are proposed by the applicants, who are non-federal entities, 
including small businesses and small governments, EPA does not know 
what projects will be proposed, when they will be proposed, or what 
level of NEPA review will be

[[Page 76093]]

required for each individual project. In this regard, EPA's NEPA review 
process is reactive to an applicant's request. These factors are built 
into this screening assessment, including assumptions about the 
entities likely to be subject to the regulations, the types of projects 
they are likely to propose, and the degree of possible economic impact 
based on the NEPA review process and the three levels of environmental 
documentation possible under this process using available historical 
information as future indicators. More detailed information on the 
small entity screening analysis can be found in the docket for this 
proposed rulemaking, EPA-HQ-OECA-2005-0062 (available at http://www.regulations.gov), and is summarized below.
    Based on EPA's past experience, EPA anticipates that annually there 
will be approximately 170 small governments applying to EPA for STAG 
grants for projects subject to NEPA, and four small businesses applying 
to EPA for new source NPDES permits for a total of approximately 174 
small entities out of potential 312 total entities. Of the 174 small 
entities possibly affected by this proposed rule, we have determined 
that the economic impact of submitting one-time environmental 
documentation to support a CE determination would be less than 1% of 
annual revenues for all small entities; and that for the one-time costs 
associated with submitting EA-related environmental documentation six 
small entities (3.4%) could experience an economic impact of 1-3%, and 
up to four small entities (2%) could experience an economic impact of 
greater than 3%. Additionally, we have also determined that 
approximately 57 of the 174 small entities (33%) could experience an 
economic impact of 1-3%, and up to 26 of the 174 small entities (15%) 
could experience an economic impact of greater than 3% for the one-time 
costs associated with submitting EIS-related environmental 
documentation. In all, these approximately 83 small entities represent 
about 48% of the estimated 174 total number of small entities that 
could experience a one-time economic impact of 1-3% or greater of 
annual revenues. Of these 83 small entities, 79 are likely to be 
governmental grant applicants and could be grant-eligible for EPA 
financial assistance with only one EIS anticipated per three years with 
this likelihood spread over 300 total grant applicants, including small 
and large governments, including tribes, and special districts.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this proposed rule on small entities. The 
environmental information submitted by an applicant under the proposed 
rule is one-time only for EPA actions subject to NEPA based on 
applicant proposals; i.e., actions proposed by grantees seeking funding 
assistance from EPA or for an NPDES permit application initiated by the 
permit applicant. In either case, EPA assumes the action will directly 
benefit the applicant (such as a grantee seeking STAG funding for 
renovation of a community drinking water system, or a permit applicant 
seeking an NPDES permit from EPA to further the applicant's business 
interests). Nonetheless, if the applicant cannot afford to provide the 
required environmental information to EPA, then EPA would undertake the 
environmental review without input from the applicant. (Applicants 
would normally be requested to demonstrate financial hardship, 
including inability to provide the requested environmental 
information.) Grantees may be grant-eligible for certain costs 
associated with providing environmental information to EPA; permit 
applicants are not eligible for EPA financial assistance. Further, EPA 
has attempted to reduce the cost on all entities, including small 
entities, through the following provisions of the proposed rule: 
Section 6.300 provides that an EID is not required when the action is 
categorically excluded, or the applicant will prepare a draft EA and 
supporting documents. The Responsible Official may prepare the NEPA 
documents without assistance from the applicant. Section 6.302 provides 
that the Responsible Official may prepare generic guidance for 
categories of actions involving a large number of applicants; and must 
ensure early involvement of applicants, consult with the applicant and 
provide guidance describing the scope and level of environmental 
information required, and provide guidance on a project-by-project 
basis to any applicant seeking assistance. This Section also provides 
that the Responsible Official must consider the extent to which the 
applicant is capable of providing the required information, must not 
require the applicant to gather data or perform analyses that 
unnecessarily duplicate either existing data or the results of existing 
analyses available to EPA, and must limit the request for environmental 
information to that necessary for the environmental review. Section 
6.303 provides that an applicant may enter into a third-party agreement 
with EPA. For grantees, third-party agreement contractor costs may be 
grant-eligible. Permit applicants are not eligible for EPA financial 
assistance.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year.
    EPA is proposing to amend its procedures for implementing the 
requirements of the National

[[Page 76094]]

Environmental Policy Act of 1969 (NEPA). Today's proposed rule also 
includes minor, technical amendments to the Agency's procedures for 
implementing Executive Order 12114, ``Environmental Effects Abroad of 
Major Federal Actions.''
    EPA is collecting information from certain applicants as part of 
the process of complying with either NEPA or Executive Order 12114. 
EPA's Executive Order 12114 procedures further the purpose of NEPA and 
provide that EPA may be guided by these procedures to the extent they 
are applicable. Therefore, when EPA conducts an environmental 
assessment pursuant to its Executive Order 12114 procedures, the Agency 
generally follows its NEPA procedures. For purposes of UMRA, applicant-
proposed projects subject to either NEPA or Executive Order 12114 are 
addressed through the NEPA assessment process.
    Those subject to the proposed NEPA rule include EPA employees who 
must comply with NEPA and certain grant and permit applicants who must 
submit environmental information to EPA for their proposed projects. 
The EPA Responsible Official is responsible for the environmental 
review process, including any categorical exclusion (CE) determination 
or the scope, accuracy, and contents of a final environmental 
assessment (EA) or environmental impact statement (EIS) and any 
associated documents. The applicant contributes by submitting 
environmental information to EPA as part of the environmental review 
process. The information submitted by grant or permit applicants is 
one-time only on a per-project basis for EPA actions subject to NEPA 
that are based on applicant proposals. Grantees are generally 
governmental jurisdictions, including State and local governments, and 
tribes applying to EPA for special projects identified in EPA's State 
and Tribal Assistance Grants (STAG account) or private sector 
applicants for new source NPDES permits issued by EPA. Applicants are 
required to provide environmental information to EPA as part of the 
environmental review process unless the EPA Responsible Official 
decides to prepare the NEPA documents without assistance from the 
applicant. If the applicant, including governmental grantees, cannot 
afford to provide the required environmental information to EPA, then 
EPA would undertake the environmental review without input from the 
applicant. Further, governmental grantees may be grant-eligible for 
certain costs associated with providing environmental information to 
EPA.
    The NEPA review for a project may result in a CE determination, or 
an EA documented with a finding of no significant impact (EA/FONSI), or 
an EIS documented with a record of decision (EIS/ROD). For any specific 
project, only one of these levels of documentation is generally 
prepared. Applicants may submit an environmental information document 
(EID) to EPA as part of the environmental review process. Alternately, 
an applicant may submit a draft EA or a draft EIS and supporting 
documents. Applicants may prepare and submit the information directly, 
or may enter a third-party contract agreement with EPA for preparation 
of an EA or EIS and supporting documentation. Governmental grantees may 
be grant-eligible for certain costs associated with providing 
environmental information to EPA, including certain third-party 
contract costs; private sector permit applicants are not eligible for 
EPA financial assistance. For purposes of maximum cost estimates to 
applicants for UMRA purposes, EPA assumed that applicants would expend 
time and contractor costs to submit: (1) Information to support 
application of a CE with environmental information prepared directly by 
the applicant's contractor; or (2) a draft EA and supporting documents 
prepared directly by the applicant's contractor; or (3) a draft and 
final EIS and supporting documents prepared by the applicant's 
contractor under a third-party contract agreement with EPA.
    Based on EPA's past experience, under the proposed rule, EPA 
anticipates there will be approximately 300 grantee projects annually 
with about 60% of these projects documented with a CE, and about 40% 
with an EA/FONSI. In addition, EPA estimates that one project (less 
than one percent of the total annual grantee projects) will have an 
EIS/ROD completed during a 3-year period. For permit applicants, EPA 
assumes there will be approximately 12 projects annually with about 11 
of the projects documented with an EA/FONSI. In addition, EPA estimates 
one project will have an EIS/ROD completed annually. None of the 
projects will be documented initially with a CE. EPA estimated one-time 
costs for applicants to prepare the environmental documentation by 
including contractor hours and costs, direct labor hours and costs, and 
O&M for documentation submitted to EPA to support a CE determination, 
or an EA/FONSI, or an EIS/ROD. For a grantee, EPA estimates an 
applicant's one-time costs for submitting environmental information 
will be: $3,292 for CE documentation, or $18,340 for EA/FONSI 
documentation, or $324,480 for EIS/ROD documentation. For a permit 
applicant, EPA estimates an applicant's one-time costs for submitting 
environmental information will be: $53,940 for EA/FONSI documentation, 
or $328,880 for EIS/ROD documentation. These figures may vary depending 
on the complexity of issues associated with the project and the 
availability of relevant information, particularly for EISs. (For 
example, EPA's experience with a limited number of EISs has included 
one-time costs ranging from nominal for information submitted by letter 
to supplement an existing oil and gas extraction EIS to over a million 
dollars for new EISs for a mining project and an oil and gas extraction 
project with multiple complex issues.) EPA believes the calculation for 
this UMRA assessment is representative of most projects. On an annual 
one-time submission basis, EPA's aggregate estimate for applicants is 
$3,823,740 for contractor hours and costs, direct labor hours and 
costs, including third-year costs for an EIS/ROD for one grantee 
project. The requirement in today's proposed rule for applicants to 
submit one-time, project-specific environmental information does not 
impose substantial compliance costs on applicants, including 
governmental grantees, because it is not likely to result in the 
expenditure by applicants, including State and local governments, and 
tribes, in the aggregate, or the private sector, of $100 million or 
more in any one year. Thus, today's proposed rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA 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.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to 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.''
    Neither the proposed amendments to EPA's NEPA implementing 
regulations nor the minor, technical amendments to EPA's procedures 
implementing Executive Order 12114 have federalism implications. They 
will not have substantial direct effects on the States, on the 
relationship between the national

[[Page 76095]]

government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. The proposed NEPA regulations do not impose 
new regulatory obligations on the States. Under EPA's current NEPA 
regulations, as well as the proposed rule, State and local governments 
are required to submit environmental information only when the State or 
local government is a project-applicant for an EPA action subject to 
NEPA, for example, when the State or local government applies for a 
grant for a special project identified in EPA's State and Tribal 
Assistance (STAG) account, or for a new source NPDES permit issued by 
EPA. The requirement to submit environmental information to EPA for the 
NEPA review does not impose substantial compliance costs because it is 
not likely to result in the expenditure by State and local governments 
in the aggregate of $100 million or more in any one year. Further, this 
requirement does not preempt State law. The proposed minor, technical 
amendments to EPA's procedures for implementing Executive Order 12114 
do not impose new regulatory obligations on the States or alter the 
current relationship between the States and the Federal government. 
Under EPA's current Executive Order 12114 regulations, as well as the 
proposed amendments, States are required to submit environmental 
information only when the State is a project-applicant for an EPA 
action subject to Executive Order 12114. The requirement to submit 
environmental information to EPA for the Executive Order 12114 review 
does not impose substantial compliance costs because it is not likely 
to result in the expenditure by State and local governments in the 
aggregate of $100 million or more in any one year. Further, this 
requirement does not preempt State law. Thus, Executive Order 13132 
does not apply to this proposed rule.
    Although this proposed rule does not have federalism implications, 
as with EPA's current rule, some parts of the proposed NEPA regulations 
might require EPA to involve the States in the NEPA environmental 
review process. For example, Sec.  6.202 encourages early coordination 
and cooperation with federal agencies, state and local governments, and 
tribes with jurisdiction by law or special expertise. Section 6.203 
requires the Responsible Official to ensure meaningful public 
participation. EPA anticipates that State and local governments would 
participate in the public participation process. Section 6.204 of the 
proposed NEPA regulations lists extraordinary circumstances that would 
bar the Responsible Official from determining that a categorical 
exclusion applies to the action. The Responsible Official may ask the 
relevant State for assistance in determining whether the proposed 
action meets these criteria.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175.
    Neither the proposed amendments to EPA's NEPA implementing 
regulations nor the minor, technical amendments to EPA's procedures 
implementing Executive Order 12114 impose new regulatory obligations on 
tribes. They will not have substantial direct effects on tribes, on the 
relationship between the national government and tribes, or on the 
distribution of power and responsibilities between the national 
government and tribes. Under EPA's current regulations, as well as the 
proposed rule, Tribes are required to submit environmental information 
only when the Tribes are project-applicants for EPA actions subject to 
NEPA or Executive Order 12114, for example, when Tribes apply for 
grants for special projects identified in EPA's State and Tribal 
Assistance (STAG) account, or for new source NPDES permits issued by 
EPA. The requirement to submit environmental information to EPA for the 
environmental review process do not impose substantial compliance costs 
because it is not likely to result in the expenditure by state, local, 
and tribal governments in the aggregate of $100 million or more in any 
one year. Further, these requirements do not preempt tribal law. Thus, 
Executive Order 13175 does not apply to this proposed rule.
    Although this proposed rule does not have Executive Order 13175 
implications, as with EPA's current rule, some parts of the proposed 
NEPA regulations might require EPA to involve tribes in the 
environmental review process. For example, Sec.  6.202 encourages early 
coordination and cooperation with federal agencies, state and local 
governments, and tribes with jurisdiction by law or special expertise. 
Section 6.203 requires the Responsible Official to ensure meaningful 
public participation. EPA anticipates that tribes would participate in 
the public participation process as appropriate. Section 6.204 of the 
proposed NEPA regulations lists extraordinary circumstances that would 
bar the Responsible Official from determining that a categorical 
exclusion applies to the action. The Responsible Official may ask the 
relevant tribe for assistance in determining whether the proposed 
action meets these criteria.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule, including 
the proposed amendments to EPA's NEPA implementing procedures and the 
proposed minor, technical amendments to the Agency's procedures for 
implementing Executive Order 12114, is not subject to Executive Order 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution and Use

    This proposed rule is not a ``significant energy action'' as 
defined in

[[Page 76096]]

Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Today's proposed 
rule includes EPA's proposed amendments to its procedures for 
implementing the requirements of the National Environmental Policy Act 
of 1969 and minor, technical amendments to the Agency's procedures for 
implementing Executive Order 12114, ``Environmental Effects Abroad of 
Major Federal Actions.'' It does not impose new regulatory obligations 
related to energy supply, distribution, or use of energy on EPA, state 
or local governments, tribes, or individual applicants required to 
provide environmental information to EPA for certain grants or permits. 
Therefore, we have concluded that this proposed rule is not likely to 
have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This proposed 
rulemaking, which includes EPA's proposed amendments to its procedures 
for implementing the requirements of the National Environmental Policy 
Act of 1969 and minor, technical amendments to the Agency's procedures 
for implementing Executive Order 12114, ``Environmental Effects Abroad 
of Major Federal Actions,'' does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards. EPA welcomes comments on this aspect of the proposed 
rulemaking and, specifically, invites the public to identify 
potentially-applicable voluntary consensus standards and to explain why 
such standards should be used in this regulation.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA maintains an ongoing commitment to ensure environmental justice 
for all people, regardless of race, color, national origin, or income. 
Ensuring environmental justice means not only protecting human health 
and the environment for everyone, but also ensuring that all people are 
treated fairly and given the opportunity to participate meaningfully in 
the development, implementation, and enforcement of environmental laws, 
regulations, and policies. In recognizing that minority and/or low-
income communities frequently may be exposed disproportionately to 
environmental harms and risks, EPA works to protect these and other 
burdened communities from adverse human health and environmental 
effects of its programs, consistent with existing environmental and 
civil rights laws, and their implementing regulations, as well as 
Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations.'' (59 FR 
7629 (Feb. 11, 1994)). Executive Order 12898 establishes federal 
executive policy on environmental justice. Its main provision directs 
federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and/or low-income populations. In 
developing this proposed rule in compliance with Executive Order 12898, 
EPA determined that the proposed rule did not raise any environmental 
justice concerns.
    Today's proposed rule, including the proposed amendments to EPA's 
NEPA implementing procedures and the proposed minor, technical 
amendments to the Agency's procedures for implementing Executive Order 
12114, does not impose new regulatory program, policy, or activity 
obligations on EPA, state or local governments, tribes, or individual 
applicants required to provide environmental information to EPA for 
certain grants or permits. Therefore, we have concluded that this 
proposed rule is not likely to have any adverse effects on minority or 
low-income populations, including tribes. However, the proposed NEPA 
rule at Sec.  6.201 requires that for specific projects, consistent 
with 40 CFR 1500.5(g) and 1502.25, the EPA Responsible Official must 
determine the applicability of executive orders, including Executive 
Order 12898, and should incorporate applicable requirements as early in 
the NEPA review process as possible. In addition, Sec.  6.203(a)(5) and 
(c)(3)(iv) require the Responsible Official to choose public 
participation methods and engage in outreach designed to reach those in 
``potentially affected communities where the proposed action is known 
or expected to have potentially significant environmental impacts or 
where the proposed action may have disproportionately high and adverse 
human health or environmental effects in any communities, including 
minority communities, low-income communities, or federally-recognized 
Indian tribal communities.'' EPA provides guidance to Responsible 
Officials and EPA staff on incorporating environmental justice concerns 
into the NEPA analysis. See ``Final Guidance For Incorporating 
Environmental Justice Concerns in EPA's NEPA Compliance Analyses, 
``April 1998.

List of Subjects in 40 CFR Part 6

    Environmental protection, Environmental assessments, Environmental 
impact statements, Environmental protection reporting, Foreign 
relations, Grant programs--environmental protection, Reporting and 
recordkeeping requirements.

    Dated: December 11, 2006.
Stephen L. Johnson,
Administrator.

    Therefore, for the reasons set forth in the preamble, EPA hereby 
proposes to amend title 40 chapter I of the Code of Federal Regulations 
by revising part 6 to read as follows:

PART 6--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT AND ASSESSING THE ENVIRONMENTAL EFFECTS ABROAD OF EPA 
ACTIONS

Subpart A--General Provisions for EPA Actions Subject to NEPA
6.100 Policy and Purpose.
6.101 Applicability.
6.102 Definitions.
6.103 Responsibilities of the NEPA Official and Responsible 
Officials.
Subpart B--EPA's NEPA Environmental Review Procedures
6.200 General requirements.
6.201 Coordination with other environmental review requirements.
6.202 Interagency cooperation.
6.203 Public participation.
6.204 Categorical exclusions and extraordinary circumstances.

[[Page 76097]]

6.205 Environmental assessments.
6.206 Findings of no significant impact.
6.207 Environmental impact statements.
6.208 Records of decision.
6.209 Filing requirements for EPA EISs.
6.210 Emergency circumstances.
Subpart C--Requirements for Environmental Information Documents and 
Third-Party Agreements for EPA Actions Subject to NEPA
6.300 Applicability.
6.301 Applicant requirements.
6.302 Responsible Official requirements.
6.303 Third-party agreements.
Subpart D--Assessing the Environmental Effects Abroad of EPA Actions
6.400 Purpose and policy.
6.401 Applicability.
6.402 Definitions.
6.403 Environmental review and assessment requirements.
6.404 Lead or cooperating agency.
6.405 Exemptions and considerations.
6.406 Implementation.

    Authority: 42 U.S.C. 4321 et seq., 7401-7671q. Subpart D also 
issued under 42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR, 
1979 Comp., p. 356.

Subpart A--General Provisions for EPA Actions Subject to NEPA


Sec.  6.100  Policy and Purpose.

    (a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., as implemented by the Council on Environmental Quality 
(CEQ) Regulations (40 CFR Parts 1500-1508), requires that Federal 
agencies include in their decision-making processes appropriate and 
careful consideration of all environmental effects of proposed actions, 
analyze potential environmental effects of proposed actions and their 
alternatives for public understanding and scrutiny, avoid or minimize 
adverse effects of proposed actions, and restore and enhance 
environmental quality to the extent practicable. The U.S. Environmental 
Protection Agency (EPA) will integrate these NEPA requirements as early 
in the Agency planning processes as possible. The environmental review 
process will be the focal point to ensure NEPA considerations are taken 
into account.
    (b) Through this proposed rule, EPA adopts the CEQ's regulations 
(40 CFR Parts 1500-1508) implementing NEPA; subparts A through C of 
this part supplement those regulations, for actions proposed by EPA 
that are subject to NEPA requirements. Subparts A through C are to be 
used in conjunction with the CEQ Regulations.


Sec.  6.101  Applicability.

    (a) Subparts A through C apply to the proposed actions of EPA that 
are subject to NEPA. EPA actions subject to NEPA include the award of 
wastewater treatment construction grants under Title II of the Clean 
Water Act, EPA's issuance of new source National Pollutant Discharge 
Elimination System (NPDES) permits under section 402 of the Clean Water 
Act, certain research and development projects, development and 
issuance of regulations, EPA actions involving renovations or new 
construction of facilities, and certain grants awarded for special 
projects identified in the State and Tribal Assistance Grants (STAG) 
account authorized by Congress through the Agency's annual 
Appropriations Act.
    (b) The appropriate Responsible Official will undertake certain EPA 
actions required by the provisions of subparts A through C of this 
part.
    (c) Certain procedures in subparts A through C of this part apply 
to the responsibilities of the NEPA Official.
    (d) Certain procedures in subparts A through C of this part apply 
to applicants who are required to provide environmental information to 
EPA.
    (e) When the Responsible Official decides to perform an 
environmental review under EPA's Voluntary NEPA Policy (see 63 FR 
58045), the Responsible Official generally will follow the procedures 
set out in subparts A through C of this part.
    (f) Subparts A through C of this part do not apply to the actions 
of EPA for which NEPA review is not required, including proposed 
actions for which analyses that have been conducted under another 
statute have been determined to be functionally equivalent to NEPA.


Sec.  6.102  Definitions.

    (a) Subparts A through C of this part use the definitions found at 
40 CFR part 1508. Additional definitions are listed in this subpart.
    (b) Definitions. (1) Administrator means the Administrator of the 
United States Environmental Protection Agency.
    (2) Applicant means any individual, agency, or other entity that 
has:
    (i) Filed an application for federal assistance; or
    (ii) Applied to EPA for a permit.
    (3) Assistance agreement means an award of federal assistance in 
the form of money or property in lieu of money from EPA to an eligible 
applicant including grants or cooperative agreements.
    (4) Environmental information document (EID) means a written 
analysis prepared by an applicant that provides sufficient information 
for the Responsible Official to undertake an environmental review and 
prepare either an EA and FONSI or an EIS and record of decision (ROD) 
for the proposed action.
    (5) Environmental review or NEPA review means the process used to 
comply with section 102(2) of NEPA or the CEQ Regulations including 
development, supplementation, adoption, and revision of NEPA documents.
    (6) Extraordinary circumstances means those circumstances listed in 
Sec.  6.204 that may cause a significant environmental effect such that 
a proposed action that otherwise meets the requirements of a 
categorical exclusion may not be categorically excluded.
    (7) NEPA document is a document prepared pursuant to NEPA.
    (8) NEPA Official is the Assistant Administrator for Enforcement 
and Compliance Assurance, who is responsible for EPA's NEPA compliance.
    (9) Responsible Official means the EPA official responsible for 
compliance with NEPA for individual proposed actions.


Sec.  6.103  Responsibilities of the NEPA Official and Responsible 
Officials.

    (a) The NEPA Official will:
    (1) Ensure EPA's compliance with NEPA pursuant to 40 CFR 1507.2(a) 
and the regulations in subparts A through C of this part.
    (2) Act as EPA's liaison with the CEQ and other federal agencies, 
state and local governments, and federally-recognized Indian tribes on 
matters of policy and administrative procedures regarding compliance 
with NEPA.
    (3) Approve procedural deviations from subparts A through C of this 
part.
    (4) Monitor the overall timeliness and quality of EPA's compliance 
with subparts A through C of this part.
    (5) Advise the Administrator on NEPA-related actions that involve 
more than one EPA office, are highly controversial, are nationally 
significant, or establish new EPA NEPA-related policy.
    (6) Support the Administrator by providing policy guidance on NEPA-
related issues.
    (7) Assist EPA's Responsible Officials with establishing and 
maintaining adequate administrative procedures to comply with subparts 
A through C of this part, performing their NEPA duties, and training 
personnel and applicants involved in the environmental review process.
    (8) Consult with Responsible Officials and CEQ regarding the 
addition, amendment, or deletion of a categorical exclusion.

[[Page 76098]]

    (b) For individual proposed actions, the Responsible Official will:
    (1) Ensure EPA's compliance with the CEQ regulations and subparts A 
through C of this part.
    (2) Ensure that environmental reviews are conducted on proposed 
actions at the earliest practicable point in EPA's decision-making 
process and in accordance with the provisions of subparts A through C 
of this part.
    (3) Ensure, to the extent practicable, early and continued 
involvement of interested federal agencies, state and local 
governments, federally-recognized Indian tribes, and affected 
applicants in the environmental review process.
    (4) Coordinate with the NEPA Official and other Responsible 
Officials, as appropriate, on resolving issues involving EPA-wide NEPA 
policy and procedures and/or unresolved conflicts with other federal 
agencies, state and local governments, and federally-recognized Indian 
tribes, and/or advising the Administrator when necessary.
    (5) Coordinate with other Responsible Officials, as appropriate, on 
NEPA-related actions involving their specific interests.
    (6) Consistent with national NEPA guidance, provide specific policy 
guidance, as appropriate, and ensure that the Responsible Official's 
office establishes and maintains adequate administrative procedures to 
comply with subparts A through C of this part.
    (7) Upon request of an applicant and consistent with 40 CFR 1501.8, 
set time limits on the NEPA review appropriate to individual proposed 
actions.
    (8) Make decisions relating to the preparation of the appropriate 
NEPA documents, including preparing an EA or EIS, and signing the 
decision document.
    (9) Monitor the overall timeliness and quality of the Responsible 
Official's respective office's efforts to comply with subparts A 
through C of this part.
    (c) The NEPA Official and the Responsible Officials may delegate 
NEPA-related responsibilities to a level no lower than the Branch Chief 
or equivalent organizational level.

Subpart B--EPA's NEPA Environmental Review Procedures


Sec.  6.200  General requirements.

    (a) The Responsible Official must determine whether the proposed 
action meets the criteria for categorical exclusion or whether it 
requires preparation of an EA or an EIS to identify and evaluate its 
environmental impacts. The Responsible Official may decide to prepare 
an EIS without first undertaking an EA.
    (b) The Responsible Official must determine the scope of the 
environmental review by considering the type of proposed action, the 
reasonable alternatives, and the type of environmental impacts. The 
scope of an EIS will be determined as provided in 40 CFR 1508.25.
    (c) During the environmental review process, the Responsible 
Official must:
    (1) Integrate the NEPA process and the procedures of subparts A 
through C of this part into early planning to ensure appropriate 
consideration of NEPA's policies and to minimize or eliminate delay;
    (2) Emphasize cooperative consultation among federal agencies, 
state and local governments, and federally-recognized Indian tribes 
before an EA or EIS is prepared to help ensure compliance with the 
procedural provisions of subparts A through C of this part and with 
other environmental review requirements, to address the need for 
interagency cooperation, to identify the requirements for other 
agencies' reviews, and to ensure appropriate public participation.
    (3) Identify at an early stage any potentially significant 
environmental issues to be evaluated in detail and insignificant issues 
to be de-emphasized, focusing the scope of the environmental review 
accordingly;
    (4) Involve other agencies and the public, as appropriate, in the 
environmental review process for proposed actions that are not 
categorically excluded to:
    (i) Identify the federal, state, local, and federally-recognized 
Indian tribal entities and the members of the public that may have an 
interest in the action;
    (ii) Request that appropriate federal, state, and local agencies 
and federally-recognized Indian tribes serve as cooperating agencies 
consistent with 40 CFR 1501.6 and 1508.5; and
    (iii) Integrate, where possible, review of applicable federal laws 
and executive orders into the environmental review process in 
conjunction with the development of NEPA documents.
    (d) When preparing NEPA documents, the Responsible Official must:
    (1) Utilize a systematic, interdisciplinary approach to integrate 
the natural and social sciences with the environmental design arts in 
planning and making decisions on proposed actions subject to 
environmental review under subparts A through C of this part (see 40 
CFR 1501.2(a) and 1507.2);
    (2) Plan adequate time and funding for the NEPA review and 
preparation of the NEPA documents. Planning includes consideration of 
whether an applicant will be required to prepare an EID for the 
proposed action.
    (3) Review relevant planning or decision-making documents, whether 
prepared by EPA or another federal agency, to determine if the proposed 
action or any of its alternatives have been considered in a prior 
federal NEPA document. EPA may adopt the existing document, or will 
incorporate by reference any pertinent part of it, consistent with 40 
CFR 1506.3 and 1502.21.
    (4) Review relevant environmental review document prepared by a 
state or local government or federally-recognized Indian tribe to 
determine if the proposed action or any of its alternatives have been 
considered in such a document. EPA will incorporate by reference any 
pertinent part of that document consistent with 40 CFR 1502.21.
    (e) During the decision-making process for the proposed action, the 
Responsible Official must:
    (1) Incorporate the NEPA review in decision-making on the action. 
Processing and review of an applicant's application must proceed 
concurrently with the NEPA review procedures set out in subparts A 
through C of this part. EPA must complete its NEPA review before making 
a decision on the action.
    (2) Consider the relevant NEPA documents, public and other agency 
comments (if any) on those documents, and EPA responses to those 
comments, as part of consideration of the action (see 40 CFR 
1505.1(d)).
    (3) Consider the alternatives analyzed in an EA or EIS before 
rendering a decision on the action; and
    (4) Ensure that the decision on the action is to implement an 
alternative analyzed or is within the range of alternatives analyzed in 
the EA or EIS (see 40 CFR 1505.1(e)).
    (f) To eliminate duplication and to foster efficiency, the 
Responsible Official should use tiering (see 40 CFR 1502.20 and 
1508.28) and incorporate material by reference (see 40 CFR 1502.21) as 
appropriate.
    (g) For applicant-related proposed actions:
    (1) The Responsible Official may request that the applicant submit 
information to support the application of a categorical exclusion to 
the applicant's pending action.
    (2) The Responsible Official may gather the information and prepare 
the NEPA document without assistance from the applicant, or, pursuant 
to Subpart C of this part, have the applicant prepare an EID or a draft 
EA and supporting documents, or enter into

[[Page 76099]]

a third-party agreement with the applicant.
    (3) During the environmental review process, applicants may 
continue to compile additional information needed for the environmental 
review and/or information necessary to support an application for a 
permit or assistance agreement from EPA.
    (h) For all NEPA determinations (CEs, EA/FONSIs, or EIS/RODs) that 
are five years old or older, and for which the subject action has not 
yet been implemented, the Responsible Official must re-evaluate the 
proposed action, environmental conditions, and public views to 
determine whether to conduct a supplemental environmental review of the 
action and complete an appropriate NEPA document or reaffirm EPA's 
original NEPA determination. If there has been substantial change in 
the proposed action that is relevant to environmental concerns, or if 
there are significant new circumstances or information relevant to 
environmental concerns and bearing on the proposed action or its 
impacts, the Responsible Official must conduct a supplemental 
environmental review of the action and complete an appropriate NEPA 
document.


Sec.  6.201  Coordination with other environmental review requirements.

    Consistent with 40 CFR 1500.5(g) and 1502.25, the Responsible 
Official must determine the applicability of other environmental laws 
and executive orders, to the fullest extent possible. The Responsible 
Official should incorporate applicable requirements as early in the 
NEPA review process as possible.


Sec.  6.202  Interagency cooperation.

    (a) Consistent with 40 CFR 1501.5, 1501.6, and 1508.5, the 
Responsible Official will request other appropriate federal and non-
federal agencies to be joint lead or cooperating agencies in the 
preparation of NEPA documents for actions as a means of encouraging 
early coordination and cooperation with federal agencies, state and 
local governments, and federally-recognized Indian tribes with 
jurisdiction by law or special expertise.
    (b) For an EPA action related to an action of any other federal 
agency, the Responsible Official must comply with the requirements of 
40 CFR 1501.5 and 1501.6 relating to lead agencies and cooperating 
agencies, respectively. The Responsible Official will work with the 
other involved agencies to facilitate coordination and to reduce delay 
and duplication.
    (c) To prepare a single document to fulfill both NEPA and state or 
local government, or federally-recognized Indian tribe requirements, 
consistent with 40 CFR 1506.2, the Responsible Official should enter 
into a written agreement with the involved state or local government, 
or federally-recognized Indian tribe that sets out the intentions of 
the parties, including the responsibilities each party intends to 
assume and procedures the parties intend to follow.


Sec.  6.203  Public participation.

    (a) General requirements. (1) The procedures in this section apply 
to EPA's environmental review processes, including development, 
supplementation, adoption, and revision of NEPA documents.
    (2) The Responsible Official will make diligent efforts to involve 
the public, including applicants, in the preparation of EAs or EISs 
consistent with 40 CFR 1501.4 and 1506.6 and applicable EPA public 
participation regulations (e.g., 40 CFR Part 25).
    (3) EPA NEPA documents will use plain language to the extent 
possible.
    (4) The Responsible Official will, to the greatest extent possible, 
give notice to any state or local government, or federally-recognized 
Indian tribe that, in the Official's judgment, may be affected by an 
action for which EPA plans to prepare an EA or an EIS.
    (5) The Responsible Official must use appropriate communication 
procedures to ensure meaningful public participation throughout the 
NEPA process. The Responsible Official must make reasonable efforts to 
involve the potentially affected communities where the proposed action 
is expected to have environmental impacts or where the proposed action 
may have human health or environmental effects in any communities, 
including minority communities, low-income communities, or federally-
recognized Indian tribal communities.
    (b) EA and FONSI requirements. At least thirty (30) calendar days 
before making the decision on whether, and if so how, to proceed with a 
proposed action, the Responsible Official must make available to the 
interested federal agencies, state and local governments, federally-
recognized Indian tribes and the affected public the EA and preliminary 
FONSI for review and comment. The Responsible Official must respond to 
any substantive comments received and finalize the EA and FONSI before 
making a decision on the proposed action. Where circumstances make it 
necessary to take the action without observing the 30-calendar-day 
comment period, the Responsible Official must notify the NEPA Official 
before taking such action. If the NEPA Official determines that a 
reduced comment period would be in the best interest of the Government, 
the NEPA Official will inform the Responsible Official, as soon as 
possible, of this approval.
    (c) EIS and ROD requirements. (1) As soon as practicable after the 
decision to prepare an EIS and before beginning the scoping process, 
the Responsible Official must ensure that a notice of intent (NOI) (see 
40 CFR 1508.22) is published in the Federal Register. The NOI must 
briefly describe the proposed action; a preliminary list of 
environmental issues to be analyzed, and possible alternatives; EPA's 
proposed scoping process including, if available, whether, when, and 
where any scoping meeting will be held; and the name and contact 
information for the person designated by EPA to answer questions about 
the proposed action and the EIS. The NOI must invite comments and 
suggestions on the scope of the EIS.
    (2) The Responsible Official must disseminate the NOI consistent 
with 40 CFR 1506.6.
    (3) The Responsible Official must conduct the scoping process 
consistent with 40 CFR 1501.7 and any applicable EPA public 
participation regulations (e.g., 40 CFR Part 25).
    (i) Publication of the NOI in the Federal Register begins the 
scoping process.
    (ii) The Responsible Official must ensure that the scoping process 
for an EIS allows a minimum of thirty (30) days for the receipt of 
public comments.
    (iii) The Responsible Official may hold one or more public meetings 
as part of the scoping process for an EPA EIS. The Responsible Official 
must announce the location, date, and time of public scoping meetings 
in the NOI or by other appropriate means, such as additional notices in 
the Federal Register, news releases to the local media, or letters to 
affected parties. Public scoping meetings should be held at least 
fifteen (15) days after public notification.
    (iv) The Responsible Official must use appropriate means to 
publicize the availability of draft and final EISs and the time and 
place for public meetings or hearings on draft EISs. The methods chosen 
for public participation must focus on reaching persons who may be 
interested in the proposed action. Such persons include those in 
potentially affected communities where the proposed action is known or 
expected to have environmental impacts including minority communities, 
low-income

[[Page 76100]]

communities, or federally-recognized Indian tribal communities.
    (v) The Responsible Official must circulate the draft and final 
EISs consistent with 40 CFR 1502.19 and any applicable EPA public 
participation regulations and in accordance with the 45-day public 
review period for draft EISs and the 30-day public review period for 
final EISs (see Sec.  6.209). Consistent with Sec.  6.209(b), the 
Responsible Official may establish a longer public comment period for a 
draft or final EIS.
    (vi) After preparing a draft EIS and before preparing a final EIS, 
the Responsible Official must solicit the comments of appropriate 
federal agencies, state and/or local governments, and/or federally-
recognized Indian tribes, and the public (see 40 CFR 1503.1). The 
Responsible Official must respond in the final EIS to substantive 
comments received (see 40 CFR 1503.4).
    (vii) The Responsible Official may conduct one or more public 
meetings or hearings on the draft EIS as part of the public involvement 
process. If meetings or hearings are held, the Responsible Official 
must make the draft EIS available to the public at least thirty (30) 
days in advance of any meeting or hearing.
    (4) The Responsible Official must make the ROD available to the 
public upon request.


Sec.  6.204  Categorical exclusions and extraordinary circumstances.

    (a) A proposed action may be categorically excluded if the action 
fits within a category of action that is eligible for exclusion and the 
proposed action does not involve any extraordinary circumstances.
    (1) Certain actions eligible for categorical exclusion require the 
Responsible Official to document a determination that a categorical 
exclusion applies. The documentation must include: a brief description 
of the proposed action; the categorical exclusion that applies to the 
action; and a statement confirming that and explaining why no 
extraordinary circumstances apply to the proposed action. The 
Responsible Official must make a copy of the determination document 
available to the public upon request. The categorical exclusions 
requiring this documentation are listed in paragraphs (a)(1)(i) through 
(a)(1)(v) of this section.
    (i) Actions at EPA owned or operated facilities involving routine 
facility maintenance, repair, and grounds-keeping; minor 
rehabilitation, restoration, renovation, or revitalization of existing 
facilities; functional replacement of equipment, acquisition and 
installation of equipment, or construction of new minor ancillary 
facilities adjacent to or on the same property as existing facilities.
    (ii) Actions relating to existing infrastructure systems (such as 
sewer systems; drinking water supply systems; and stormwater systems, 
including combined sewer overflow systems) that involve minor 
upgrading, or minor expansion of system capacity or rehabilitation 
(including functional replacement) of the existing system and system 
components (such as the sewer collection network and treatment system, 
the system to collect, treat, store and distribute drinking water; and 
stormwater systems, including combined sewer overflow systems) or 
construction of new minor ancillary facilities adjacent to or on the 
same property as existing facilities. This category does not include 
actions that: involve new or relocated discharges to surface or ground 
water; will likely result in the substantial increase in the volume or 
the loading of pollutant to the receiving water; will provide capacity 
to serve a population 30% greater than the existing population or is 
not supported by the state, or other regional growth plan or strategy; 
or directly or indirectly involve or relate to upgrading or extending 
infrastructure systems primarily for the purposes of future 
development.
    (iii) Actions in unsewered communities relating to the use of 
proposed wastewater on-site technologies where such technologies 
replace existing systems.
    (iv) Actions involving re-issuance of a NPDES permit for a new 
source providing the conclusions of the original NEPA document are 
still valid (including the appropriate mitigation), there will be no 
degradation of the receiving waters, and the permit conditions do not 
change or are more environmentally protective.
    (v) Actions for award of grants authorized by Congress under EPA's 
annual Appropriations Act that are solely for reimbursement of the 
costs of a project that was completed prior to the date the 
appropriation was enacted.
    (2) Certain actions eligible for categorical exclusion do not 
require the Responsible Official to document a determination that a 
categorical exclusion applies. These categorical exclusions are listed 
in paragraphs (a)(2)(i) through (a)(2)(x) of this section.
    (i) Procedural, ministerial, administrative, financial, personnel, 
and management actions necessary to support the normal conduct of EPA 
business.
    (ii) Acquisition actions (compliant with applicable procedures for 
sustainable or ``green'' procurement) and contracting actions necessary 
to support the normal conduct of EPA business.
    (iii) Actions involving information collection, dissemination, or 
exchange; planning; monitoring and sample collection wherein no 
significant alteration of existing ambient conditions occurs; 
educational and training programs; literature searches and studies; 
computer studies and activities; research and analytical activities; 
development of compliance assistance tools; and architectural and 
engineering studies. These actions include those conducted directly by 
EPA and EPA actions relating to contracts or assistance agreements 
involving such actions.
    (iv) Actions relating to or conducted completely within a 
permanent, existing contained facility, such as a laboratory, or other 
enclosed building, provided that reliable and scientifically sound 
methods are used to appropriately dispose of wastes and safeguards 
exist to prevent hazardous, toxic and radioactive materials in excess 
of allowable limits from entering the environment. Where such 
activities are conducted at laboratories, the Lab Director or other 
appropriate official must certify in writing that the laboratory 
follows good laboratory practices and adheres to all applicable 
federal, state, local and federally-recognized Indian tribal laws and 
regulations. This category does not include activities related to 
construction and/or demolition within the facility (see paragraph 
(a)(1)(i) of this section).
    (v) Actions involving emergency preparedness planning and training 
activities.
    (vi) Actions involving the acquisition, transfer, lease, 
disposition, or closure of existing permanent structures, land, 
equipment, materials or personal property provided that the property: 
has been used solely for office functions; has never been used for 
laboratory purposes by any party; does not require site remediation; 
and will be used in essentially the same manner such that the type and 
magnitude of the impacts will not change substantially. This category 
does not include activities related to construction and/or demolition 
of structures on the property (see paragraph (a)(1)(i) of this 
section).
    (vii) Actions involving providing technical advice to federal 
agencies, state or local governments, federally-recognized Indian 
tribes, foreign

[[Page 76101]]

governments, or public or private entities.
    (viii) Actions involving approval of EPA participation in 
international ``umbrella'' agreements for cooperation in environmental-
related activities that would not commit the United States to any 
specific projects or actions.
    (ix) Actions involving containment or removal and disposal of 
asbestos-containing material or lead-based paint from EPA owned or 
operated facilities when undertaken in accordance with applicable 
regulations.
    (x) Actions involving new source NPDES permit modifications that 
make only technical corrections to the NPDES permit (such as correcting 
typographical errors) that do not result in a change in environmental 
impacts or conditions.
    (b) The Responsible Official must review actions eligible for 
categorical exclusion to determine whether any extraordinary 
circumstances are involved. Extraordinary circumstances are listed in 
paragraphs (b)(1) through (b)(10) of this section. (See 40 CFR 1508.4.)
    (1) The proposed action is known or expected to have potentially 
significant environmental impacts on the quality of the human 
environment either individually or cumulatively over time (see 40 CFR 
1508.25(a)).
    (2) The proposed action is known or expected to have 
disproportionately high and adverse human health or environmental 
effects on any community, including minority communities, low-income 
communities, or federally-recognized Indian tribal communities.
    (3) The proposed action may significantly affect federally listed 
threatened or endangered species or their critical habitat.
    (4) The proposed action may significantly affect national natural 
landmarks or any property with nationally significant historic, 
architectural, prehistoric, archeological, or cultural value, including 
but not limited to, property listed on or eligible for the National 
Register of Historic Places.
    (5) The proposed action may significantly affect environmentally 
important natural resource areas such as wetlands, floodplains, 
significant agricultural lands, aquifer recharge zones, coastal zones, 
barrier islands, wild and scenic rivers, and significant fish or 
wildlife habitat.
    (6) The proposed action has the potential to cause significant 
adverse air quality effects.
    (7) The proposed action will likely have a significant effect on 
the pattern and type of land use (industrial, commercial, agricultural, 
recreational, residential) or growth and distribution of population 
including altering the character of existing residential areas, or may 
not be consistent with state or local government, or federally-
recognized Indian tribe approved land use plans or federal land 
management plans.
    (8) The proposed action is expected to cause significant public 
controversy about a potential environmental impact of the proposed 
action.
    (9) The proposed action may be associated with providing financial 
assistance to a federal agency through an interagency agreement for a 
project that is known or expected to have potentially significant 
environmental impacts.
    (10) The proposed action may conflict with federal, state or local 
government, or federally-recognized Indian tribe environmental, 
resource-protection, or land-use laws or regulations.
    (c) The Responsible Official may request that an applicant submit 
sufficient information to enable the Responsible Official to determine 
whether a categorical exclusion applies to the applicant's proposed 
action or whether an exceptional circumstance applies. Pursuant to 
Subpart C of this part, applicants are not required to prepare EIDs for 
actions that are being considered for categorical exclusion.
    (d) The Responsible Official must prepare an EA or EIS when a 
proposed action involves extraordinary circumstances.
    (e) After a determination has been made that a categorical 
exclusion applies to an action, if new information or changes in the 
proposed action involve or relate to at least one of the extraordinary 
circumstances or otherwise indicate that the action may not meet the 
criteria for categorical exclusion and the Responsible Official 
determines that an action no longer qualifies for a categorical 
exclusion, the Responsible Official will prepare an EA or EIS.
    (f) The Responsible Official, or other interested parties, may 
request the addition, amendment, or deletion of a categorical 
exclusion.
    (1) Such requests must be made in writing, be directed to the NEPA 
Official, and contain adequate information to support and justify the 
request.
    (2) Proposed new categories of actions for exclusion must meet 
these criteria:
    (i) Actions covered by the proposed categorical exclusion generally 
do not individually or cumulatively have a significant effect on the 
human environment and have been found by EPA to have no such effect.
    (ii) Actions covered by the proposed categorical exclusion 
generally do not involve extraordinary circumstances as set out in 
paragraphs (b)(1) through (b)(14) of this section and generally do not 
require preparation of an EIS; and
    (iii) Information adequate to determine that a proposed action is 
properly covered by the proposed category will usually be available.
    (3) The NEPA Official must determine that the addition, amendment, 
or deletion of a categorical exclusion is appropriate.
    (g) Any addition, amendment, or deletion of a categorical exclusion 
will be done by rule-making and in coordination with CEQ pursuant to 40 
CFR 1507.3 to amend paragraph (a)(1) or paragraph (a)(2) of this 
section.


Sec.  6.205  Environmental assessments.

    (a) The Responsible Official must prepare an environmental 
assessment (EA) (see 40 CFR 1508.9) for a proposed action that is 
expected to result in environmental impacts and the significance of the 
impacts is not known. An EA is not required if the proposed action is 
categorically excluded, or if the Responsible Official has decided to 
prepare an EIS. (See 40 CFR 1501.3.) Types of actions that typically 
require the preparation of an EA include: the award of wastewater 
treatment construction grants under Title II of the Clean Water Act; 
EPA's issuance of new source NPDES permits under section 402 of the 
Clean Water Act; EPA actions involving renovations or new construction 
of facilities; certain grants awarded for special projects identified 
in the State and Tribal Assistance Grants (STAG) account authorized by 
Congress through the Agency's annual Appropriations Act; and research 
and development projects, such as initial field demonstration of a new 
technology, field trials of a new product or new uses of an existing 
technology, alteration of a local habitat by physical or chemical 
means, or actions that may result in the release of radioactive, 
hazardous, or toxic substances, or biota.
    (b) Consistent with 40 CFR 1508.9, an EA must provide sufficient 
information and analysis for determining whether to prepare an EIS or 
to issue a FONSI (see 40 CFR 1508.9(a)), and may include analyses 
needed for other environmental determinations. The EA must focus on 
resources that might be impacted and any environmental issues that are 
of public concern.
    (c) An EA must include:
    (1) A brief discussions of:
    (i) The need for the proposed action;

[[Page 76102]]

    (ii) The alternatives, including the no action alternative (which 
must be assessed even when the proposed action is specifically required 
by legislation or a court order);
    (iii) The affected environment, including baseline conditions that 
may be impacted by the proposed action and alternatives;
    (iv) The environmental impacts of the proposed action and 
alternatives, including any unresolved conflicts concerning alternative 
uses of available resources; and
    (v) Other applicable environmental laws and executive orders.
    (2) A listing or summary of any coordination or consultation 
undertaken with any federal agency, state or local government, or 
federally-recognized Indian tribe regarding compliance with applicable 
laws and executive orders;
    (3) Identification and description of any mitigation measures 
considered, including any mitigation measures that must be adopted to 
ensure the action will not have significant impacts; and
    (4) Incorporation of documents by reference, if appropriate, 
including, when available, the EID for the action.


Sec.  6.206  Findings of no significant impact.

    (a) The Responsible Official may issue a finding of no significant 
impact (FONSI) (see 40 CFR 1508.13) only if the EA supports the finding 
that the proposed action will not have a significant effect on the 
human environment. If the EA does not support a FONSI, the Responsible 
Official must prepare an EIS and issue a ROD before taking action on 
the proposed action.
    (b) Consistent with 40 CFR 1508.13, a FONSI must include:
    (1) The EA, or in lieu of the EA, a summary of the supporting EA 
that includes a brief description of the proposed action and 
alternatives considered in the EA, environmental factors considered, 
and project impacts; and
    (2) A brief description of the reasons why there are no significant 
impacts.
    (c) In addition, the FONSI, must include:
    (1) Any commitments to mitigation that are essential to render the 
impacts of the proposed action not significant;
    (2) The date of issuance; and
    (3) The signature of the Responsible Official.
    (d) The Responsible Official must ensure that an applicant that has 
committed to mitigation possesses the authority and ability to fulfill 
the commitments.
    (e) The Responsible Official must make a preliminary FONSI 
available to the public in accordance with Sec.  6.203(b) before taking 
action.
    (f) The Responsible Official may proceed with the action subject to 
any mitigation measures described in the FONSI after responding to any 
substantive comments received on the preliminary FONSI during the 30-
day comment period, or 30 days after issuance of the FONSI if no 
substantive comments are received.
    (g) The Responsible Official must ensure that the mitigation 
measures necessary to the FONSI determination, at a minimum, are 
enforceable, and conduct appropriate monitoring of the mitigation 
measures.
    (h) The Responsible Official may revise a FONSI at any time 
provided the revision is supported by an EA. A revised FONSI is subject 
to all provisions of paragraph (d) of this section.


Sec.  6.207  Environmental impact statements.

    (a) The Responsible Official will prepare an environmental impact 
statement (EIS) (see 40 CFR 1508.11) for major actions significantly 
affecting the quality of the human environment, including actions for 
which the EA analysis demonstrates that significant impacts will occur 
that will not be reduced or eliminated by changes to or mitigation of 
the proposed action.
    (1) An EIS must be prepared consistent with 40 CFR part 1502.
    (2) A proposed action normally requires an EIS if it meets any of 
the following criteria. (See 40 CFR 1507.3(b)(2).)
    (i) The proposed action would result in a discharge of treated 
effluent from a new or modified existing facility into a body of water 
and the discharge is likely to have a significant effect on the quality 
of the receiving waters.
    (ii) The proposed action is likely to directly, or through induced 
development, have significant adverse effect upon local ambient air 
quality or local ambient noise levels.
    (iii) The proposed action is likely to have significant adverse 
effects on surface water reservoirs or navigation projects.
    (iv) The proposed action would be inconsistent with state or local 
government, or federally-recognized Indian tribe approved land use 
plans or regulations, or federal land management plans.
    (v) The proposed action would be inconsistent with state or local 
government, or federally-recognized Indian tribe environmental, 
resource-protection, or land-use laws and regulations for protection of 
the environment.
    (vi) The proposed action is likely to significantly affect the 
environment through the release of radioactive, hazardous or toxic 
substances, or biota.
    (vii) The proposed action involves uncertain environmental effects 
or highly unique environmental risks that are likely to be significant.
    (viii) The proposed action is likely to significantly affect 
national natural landmarks or any property on or eligible for the 
National Register of Historic Places.
    (ix) The proposed action is likely to significantly affect 
environmentally important natural resources such as wetlands, 
significant agricultural lands, aquifer recharge zones, coastal zones, 
barrier islands, wild and scenic rivers, and significant fish or 
wildlife habitat.
    (x) The proposed action in conjunction with related federal, state 
or local government, or federally-recognized Indian tribe projects is 
likely to produce significant cumulative impacts.
    (xi) The proposed action is likely to significantly affect the 
pattern and type of land use (industrial, commercial, recreational, 
residential) or growth and distribution of population including 
altering the character of existing residential areas.
    (3) EISs are typically prepared for the following actions:
    (i) New regional wastewater treatment facilities or water supply 
systems for a community with a population greater than 100,000.
    (ii) Expansions of existing wastewater treatment facilities that 
will increase existing discharge to an impaired water by greater than 
10 million gallons per day (mgd).
    (iii) Issuance of new source NPDES permit for a new major 
industrial discharge.
    (iv) Issuance of a new source NPDES permit for a new oil/gas 
development and production operation on the outer continental shelf.
    (v) Issuance of a new source NPDES permit for a deepwater port with 
a projected discharge in excess of 10 mgd.
    (b) When appropriate, the Responsible Official will prepare a 
legislative EIS consistent with 40 CFR 1506.8.
    (c) In preparing an EIS, the Responsible Official must determine if 
an applicant, other federal agencies or state or local governments, or 
federally-recognized Indian tribes are involved with the project and 
apply the applicable provisions of section 6.202 and Subpart C of this 
part.
    (d) An EIS must:
    (1) Comply with all requirements at 40 CFR parts 1500-1508;
    (2) Analyze all reasonable alternatives and the no action 
alternative (which may be the same as denying the action).

[[Page 76103]]

Assess the no action alternative even when the proposed action is 
specifically required by legislation or a court order.
    (3) Describe the potentially affected environment including, as 
appropriate, the size and location of new and existing facilities, land 
requirements, operation and maintenance requirements, auxiliary 
structures such as pipelines or transmission lines, and construction 
schedules.
    (4) Summarize any coordination or consultation undertaken with any 
federal agency, state and/or local government, and/or federally-
recognized Indian tribe, including copies or summaries of relevant 
correspondence.
    (5) Summarize any public meetings during the scoping process 
including the date, time, place, and purpose of the meetings. The final 
EIS must summarize the public participation process including the date, 
time, place, and purpose of meetings or hearings held after publication 
of the draft EIS.
    (6) Consider substantive comments received during the public 
participation process. The draft EIS must consider the substantive 
comments received during the scoping process. The final EIS must 
include or summarize all substantive comments received on the draft 
EIS, respond to any substantive comments on the draft EIS, and explain 
any changes to the draft EIS and the reason for the changes.
    (7) Include the names and qualifications of the persons primarily 
responsible for preparing the EIS including an EIS prepared under a 
third-party contract (if applicable), significant background papers, 
and the EID (if applicable).
    (e) The Responsible Official must prepare a supplemental EIS when 
appropriate, consistent with 40 CFR 1502.9.


Sec.  6.208  Records of decision.

    (a) The Responsible Official may not make any decisions on the 
action until the time periods in 40 CFR 1506.10 have been met.
    (b) A record of decision (ROD) records EPA's decision on the 
action. Consistent with 40 CFR 1505.2, a ROD must include:
    (1) A brief description of the proposed action and alternatives 
considered in the EIS, environmental factors considered, and project 
impacts;
    (2) Any commitments to mitigation; and
    (3) An explanation if an environmentally preferred alternative was 
not selected.
    (c) In addition, the ROD must include:
    (1) Responses to any substantive comments on the final EIS;
    (2) The date of issuance; and
    (3) The signature of the Responsible Official.
    (d) The Responsible Official must ensure that an applicant that has 
committed to mitigation possesses the authority and ability to fulfill 
the commitment.
    (e) The Responsible Official must make a ROD available to the 
public.
    (f) Upon issuance of the ROD, the Responsible Official may proceed 
with the action subject to any mitigation measures described in the 
ROD. The Responsible Official must ensure adequate monitoring of 
mitigation measures identified in the ROD.
    (g) If the mitigation identified in the ROD will be included as a 
condition in the permit or grant, the Responsible Official must ensure 
that EPA has the authority to impose the conditions. The Responsible 
Official should ensure that compliance with assistance agreement or 
permit conditions will be monitored and enforced under EPA's assistance 
agreement and permit authorities.
    (h) The Responsible Official may revise a ROD at any time provided 
the revision is supported by an EIS. A revised ROD is subject to all 
provisions of paragraph (d) of this section.


Sec.  6.209  Filing requirements for EPA EISs.

    (a) The Responsible Official must file an EIS with the NEPA 
Official no earlier than the document being transmitted to commenting 
agencies and made available to the public. The Responsible Official 
must comply with any guidelines established by the NEPA Official for 
the filing system process and comply with 40 CFR 1506.9 and 1506.10. 
The review periods are computed through the filing system process and 
published in the Federal Register in the Notice of Availability.
    (b) The Responsible Official may request that the NEPA Official 
extend the review periods for an EIS. The NEPA Official will publish 
notice of an extension of the review period in the Federal Register and 
notify the CEQ.


Sec.  6.210  Emergency circumstances.

    If emergency circumstances make it necessary to take an action that 
has a significant environmental impact without observing the provisions 
of subparts A through C of this part that are required by the CEQ 
Regulations, the Responsible Official must consult with the NEPA 
Official at the earliest possible time. Actions taken without observing 
the provisions of subparts A through C of this part will be limited to 
actions necessary to control the immediate impacts of the emergency; 
other actions remain subject to the environmental review process. 
Consistent with 40 CFR 1506.11, the Responsible Official and the NEPA 
Official should consult with CEQ about alternative arrangements at the 
earliest opportunity.

Subpart C--Requirements for Environmental Information Documents and 
Third-Party Agreements for EPA Actions Subject to NEPA


Sec.  6.300  Applicability.

    (a) This section applies to actions that involve applications to 
EPA for permits or assistance agreements.
    (b) The Responsible Official is responsible for the environmental 
review process on EPA's action (that is, issuing the permit or awarding 
the assistance agreement) with the applicant contributing through 
submission of an EID or a draft EA and supporting documents.
    (c) An applicant is not required to prepare an EID when:
    (1) The action has been categorically excluded; or
    (2) The applicant will prepare and submit an EA or EIS and 
supporting documents.
    (d) The Responsible Official must notify the applicant if EPA will 
not require submission of an EID.


Sec.  6.301  Applicant requirements.

    (a) The applicant must prepare an EID in consultation with the 
Responsible Official, unless the Responsible Official has notified the 
applicant that an EID is not required. The EID must be of sufficient 
scope and content to enable the Responsible Official to prepare an EA 
and FONSI or, if necessary, an EIS and ROD. The applicant must submit 
the EID to the Responsible Official.
    (b) The applicant must consult with the Responsible Official as 
early as possible in the planning process to obtain guidance with 
respect to the appropriate level and scope of environmental information 
required for the EID.
    (c) As part of the EID process, the applicant may consult with 
appropriate federal agencies, state and local governments, and 
federally-recognized Indian tribes and other potentially affected 
parties to identify their interests in the project and the 
environmental issues associated with the project.
    (d) The applicant must notify the Responsible Official as early as 
possible of other federal agency, state or local government, or 
federally-recognized Indian tribe requirements related to the project. 
The applicant also must notify the Responsible Official of any private 
entities and organizations affected by

[[Page 76104]]

the proposed project. (See 40 CFR 1501.2(d)(2).)
    (e) The applicant must notify the Responsible Official if, during 
EPA's environmental review process, the applicant:
    (1) Changes its plans for the project as originally submitted to 
EPA; and/or
    (2) Changes its schedule for the project from that originally 
submitted to EPA.
    (f) In accordance with section 6.204 of this part, where 
appropriate, the applicant may request a categorical exclusion 
determination by the Responsible Official. If requested by the 
Responsible Official, the applicant must submit information to the 
Responsible Official regarding the application of a categorical 
exclusion to EPA's pending action and the applicant's project.


Sec.  6.302  Responsible Official requirements.

    (a) Consistent with 40 CFR 1501.2(d), the Responsible Official must 
ensure early involvement of applicants in the environmental review 
process to identify environmental effects, avoid delays, and resolve 
conflicts.
    (b) The Responsible Official must notify the applicant if a 
determination has been made that the action has been categorically 
excluded, or if EPA needs additional information to support the 
application of a categorical exclusion or if the submitted information 
does not support the application of a categorical exclusion and that an 
EA, or an EIS, will be required.
    (c) When an EID is required for a project, the Responsible Official 
must consult with the applicant and provide the applicant with guidance 
describing the scope and level of environmental information required.
    (1) The Responsible Official must provide guidance on a project-by-
project basis to any applicant seeking such assistance. For major 
categories of actions involving a large number of applicants, the 
Responsible Official may prepare and make available generic guidance 
describing the recommended level and scope of environmental information 
that applicants should provide.
    (2) The Responsible Official must consider the extent to which the 
applicant is capable of providing the required information. The 
Responsible Official may not require the applicant to gather data or 
perform analyses that unnecessarily duplicate either existing data or 
the results of existing analyses available to EPA. The Responsible 
Official must limit the request for environmental information to that 
necessary for the environmental review.
    (d) If, prior to completion of the environmental review for a 
project, the Responsible Official receives notification from the 
applicant under section 6.301(e) and determines that its actions would 
result in significant impacts or would limit alternatives, the 
Responsible Official must notify the applicant promptly that EPA will 
take appropriate action to ensure that the objectives and procedures of 
NEPA are achieved (see 40 CFR 1506.1(b)). Such actions may include 
withholding grant funds or denial of permits.
    (e) The Responsible Official must begin the NEPA review as soon as 
possible after receiving the applicant's EID or draft EA. The 
Responsible Official must independently evaluate the information 
submitted and be responsible for its accuracy (see 40 CFR 1506.5).
    (f) At the request of an applicant and at the discretion of the 
Responsible Official, an applicant may prepare an EA or EIS and 
supporting documents or enter into a third-party contract pursuant to 
section 6.303 of this part.
    (g) The Responsible Official must have reviewed and taken 
responsibility for the completed NEPA documents before rendering a 
final decision on the proposed action.


Sec.  6.303  Third-party agreements.

    (a) If an EA or EIS is to be prepared for an action subject to 
subparts A through C of this part, the Responsible Official and the 
applicant may enter into an agreement whereby the applicant engages and 
pays for the services of a third-party contractor to prepare an EA or 
EIS and any associated documents for consideration by EPA. In such 
cases, the Responsible Official must approve the qualifications of the 
third-party contractor. The third-party contractor must be selected on 
the basis of ability and absence of any conflict of interest. 
Consistent with 40 CFR 1506.5(c), in consultation with the applicant, 
the Responsible Official shall select the contractor. The Responsible 
Official must provide guidance to the applicant and contractor 
regarding the information to be developed, including the project's 
scope, and guide and participate in the collection, analysis, and 
presentation of the information. The Responsible Official has sole 
authority for final approval of an EA or EIS.
    (1) The applicant must engage and pay for the services of a 
contractor to prepare the EA or EIS and any associated documents 
without using EPA financial assistance (including required match);
    (2) The Responsible Official, in consultation with the applicant, 
must ensure that the contractor is qualified to prepare an EA or EIS, 
and that the substantive terms of the contract specify the information 
to be developed, and the procedures for gathering, analyzing and 
presenting the information;
    (3) The Responsible Official must prepare a disclosure statement 
for the applicant to include in the contract specifying that the 
contractor has no financial or other interest in the outcome of the 
project (see 40 CFR 1506.5(c)).
    (4) The Responsible Official must ensure that the EA or EIS and any 
associated documents contain analyses and conclusions that adequately 
assess the relevant environmental issues.
    (b) In order to make a decision on the action, the Responsible 
Official must independently evaluate the information submitted in the 
EA or EIS and any associated documents, and issue an EA or draft and 
final EIS. After review of, and appropriate changes to, the EA or EIS 
submitted by the applicant, the Responsible Official may accept it as 
EPA's document. The Responsible Official is responsible for the scope, 
accuracy, and contents of the EA or EIS and any associated documents 
(see 40 CFR 1506.5).
    (c) A third-party agreement may not be initiated unless both the 
applicant and the Responsible Official agree to its creation and terms.
    (d) The terms of the contract between the applicant and the third-
party contractor must ensure that the contractor does not have recourse 
to EPA for financial or other claims arising under the contract, and 
that the Responsible Official, or other EPA designee, may give 
technical advice to the contractor.

Subpart D--Assessing the Environmental Effects Abroad of EPA 
Actions


Sec.  6.400  Purpose and policy.

    (a) Purpose. On January 4, 1979, the President signed Executive 
Order 12114 entitled ``Environmental Effects Abroad of Major Federal 
Actions.'' The purpose of this Executive Order is to enable responsible 
Federal officials in carrying out or approving major Federal actions 
which affect foreign nations or the global commons to be informed of 
pertinent environmental considerations and to consider fully the 
environmental impacts of the actions undertaken. While based on 
independent authority, this Order furthers the purpose of the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and the Marine 
Protection, Research, and Sanctuaries Act (MPRSA) (33 U.S.C.

[[Page 76105]]

1401 et seq.). It should be noted, however, that in fulfilling its 
responsibilities under Executive Order 12114, EPA shall be guided by 
CEQ regulations only to the extent that they are made expressly 
applicable by this subpart. The procedures set forth below reflect 
EPA's duties and responsibilities as required under the Executive Order 
and satisfy the requirement for issuance of procedures under section 2-
1 of the Executive Order.
    (b) Policy. It shall be the policy of this Agency to carry out the 
purpose and requirements of the Executive Order to the fullest extent 
possible. EPA, within the realm of its expertise, shall work with the 
Department of State and the Council on Environmental Quality to provide 
information to other Federal agencies and foreign nations to heighten 
awareness of and interest in the environment. EPA shall further 
cooperate to the extent possible with Federal agencies to lend special 
expertise and assistance in the preparation of required environmental 
documents under the Executive Order. EPA shall perform environmental 
reviews of activities significantly affecting the global commons and 
foreign nations as required under Executive Order 12114 and as set 
forth under these procedures.


Sec.  6.401  Applicability.

    (a) Administrative actions requiring environmental review. The 
environmental review requirements apply to the activities of EPA as 
follows:
    (1) Major research or demonstration projects which affect the 
global commons or a foreign nation.
    (2) Ocean dumping activities carried out under section 102 of the 
MPRSA which affect the related environment.
    (3) Major permitting or licensing by EPA of facilities which affect 
the global commons or the environment of a foreign nation. This may 
include such actions as the issuance by EPA of hazardous waste 
treatment, storage, or disposal facility permits pursuant to section 
3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925), 
NPDES permits pursuant to section 402 of the Clean Water Act (33 U.S.C. 
1342), and prevention of significant deterioration approvals pursuant 
to Part C of the Clean Air Act (42 U.S.C. 7470 et seq.)
    (4) Wastewater Treatment Construction Grants Program under section 
201 of the Clean Water Act when activities addressed in the facility 
plan would have environmental effects abroad.
    (5) Other EPA activities as determined by OFA and OIA (see Sec.  
6.406(c)).
    (b) [Reserved].


Sec.  6.402  Definitions.

    As used in this subpart, environment means the natural and physical 
environment and excludes social, economic and other environments; 
global commons is that area (land, air, water) outside the jurisdiction 
of any nation; and responsible official is either the EPA Assistant 
Administrator or Regional Administrator as appropriate for the 
particular EPA program. Also, an action significantly affects the 
environment if it does significant harm to the environment even though 
on balance the action may be beneficial to the environment. To the 
extent applicable, the responsible official shall address the 
considerations set forth in the CEQ regulations under 40 CFR 1508.27 in 
determining significant effect.


Sec.  6.403  Environmental review and assessment requirements.

    (a) Research and demonstration projects. The appropriate Assistant 
Administrator is responsible for performing the necessary degree of 
environmental review on research and demonstration projects undertaken 
by EPA. If the research or demonstration project affects the 
environment of the global commons, the applicant shall prepare an 
environmental analysis. This will assist the responsible official in 
determining whether an EIS is necessary. If it is determined that the 
action significantly affects the environment of the global commons, 
then an EIS shall be prepared. If the undertaking significantly affects 
a foreign nation EPA shall prepare a unilateral, bilateral or 
multilateral environmental study. EPA shall afford the affected foreign 
nation or international body or organization an opportunity to 
participate in this study. This environmental study shall discuss the 
need for the action, analyze the environmental impact of the various 
alternatives considered and list the agencies and other parties 
consulted.
    (b) Ocean dumping activities. (1) The Assistant Administrator for 
Water shall ensure the preparation of appropriate environmental 
documents relating to ocean dumping activities in the global commons 
under section 102 of the MPRSA. For ocean dumping site designations 
prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228, 
and for the establishment or revision of criteria under section 102(a) 
of the MPRSA, EPA shall prepare appropriate environmental documents 
consistent with EPA's Notice of Policy and Procedures for Voluntary 
Preparation of National Environmental Policy Act (NEPA) Documents dated 
October 29, 1998 (see 63 FR 58045).
    (2) For individual permits issued by EPA under section 102(b) an 
environmental assessment shall be made by EPA. Pursuant to 40 CFR part 
221, the permit applicant shall submit with the application an 
environmental analysis which includes a discussion of the need for the 
action, an outline of alternatives, and an analysis of the 
environmental impact of the proposed action and alternatives consistent 
with the EPA criteria established under section 102(a) of MPRSA. The 
information submitted under 40 CFR part 221 shall be sufficient to 
satisfy the environmental assessment requirement.
    (c) EPA permitting and licensing activities. The appropriate 
Regional Administrator is responsible for conducting concise 
environmental reviews with regard to permits issued under section 3005 
of the Resource Conservation and Recovery Act (RCRA permits), section 
402 of the Clean Water Act (NPDES permits), and section 165 of the 
Clean Air Act (PSD permits), for such actions undertaken by EPA which 
affect the global commons or foreign nations. The information submitted 
by applicants for such permits or approvals under the applicable 
consolidated permit regulations (40 CFR parts 122 and 124) and 
Prevention of Significant Deterioration (PSD) regulations (40 CFR part 
52) shall satisfy the environmental document requirement under Section 
2-4(b) of Executive Order 12114. Compliance with applicable 
requirements in part 124 of the consolidated permit regulations (40 CFR 
part 124) shall be sufficient to satisfy the requirements to conduct a 
concise environmental review for permits subject to this paragraph (c).
    (d) Wastewater treatment facility planning. 40 CFR part 6, subparts 
A through C, detail the environmental review process for the facilities 
planning process under the wastewater treatment works construction 
grants program. For the purpose of these regulations, the facility plan 
shall also include a concise environmental review of those activities 
that would have environmental effects abroad. This shall apply only to 
the Step 1 grants awarded after January 14, 1981, but on or before 
December 29, 1981, and facilities plans developed after December 29, 
1981. Where water quality impacts identified in a facility plan are the 
subject of water quality agreements with Canada or Mexico, nothing in 
these regulations shall impose on the facility planning process 
coordination and consultation

[[Page 76106]]

requirements in addition to those required by such agreements.
    (e) Review by other Federal agencies and other appropriate 
officials. The responsible officials shall consult with other Federal 
agencies with relevant expertise during the preparation of the 
environmental document. As soon as feasible after preparation of the 
environmental document, the responsible official shall make the 
document available to the Council on Environmental Quality, Department 
of State, and other appropriate officials. The responsible official 
with assistance from OIA shall work with the Department of State to 
establish procedures for communicating with and making documents 
available to foreign nations and international organizations.


Sec.  6.404  Lead or cooperating agency.

    (a) Lead Agency. Section 3-3 of Executive Order 12114 requires the 
creation of a lead agency whenever an action involves more than one 
Federal agency. In implementing section 3-3, EPA shall, to the fullest 
extent possible, follow the guidance for the selection of a lead agency 
contained in 40 CFR 1501.5 of the CEQ regulations.
    (b) Cooperating Agency. Under Section 2-4(d) of the Executive 
Order, Federal agencies with special expertise are encouraged to 
provide appropriate resources to the agency preparing environmental 
documents in order to avoid duplication of resources. In working with a 
lead agency, EPA shall to the fullest extent possible serve as a 
cooperating agency in accordance with 40 CFR 1501.6. When other program 
commitments preclude the degree of involvement requested by the lead 
agency, the responsible EPA official shall so inform the lead agency in 
writing.


Sec.  6.405  Exemptions and considerations.

    Under section 2-5(b) and (c) of the Executive Order, Federal 
agencies may provide for modifications in the contents, timing and 
availability of documents or exemptions from certain requirements for 
the environmental review and assessment. The responsible official, in 
consultation with the Director, Office of Federal Activities (OFA), and 
the Assistant Administrator, Office of International Affairs (OIA), may 
approve modifications for situations described in section 2-5(b). The 
responsible official, in consultation with the Director, OFA and 
Assistant Administrator, OIA, shall obtain exemptions from the 
Administrator for situations described in section 2-5(c). The 
Department of State and the Council on Environmental Quality shall be 
consulted as soon as possible on the utilization of such exemptions.


Sec.  6.406  Implementation.

    (a) Oversight. OFA is responsible for overseeing the implementation 
of these procedures and shall consult with OIA wherever appropriate. 
OIA shall be utilized for making formal contacts with the Department of 
State. OFA shall assist the responsible officials in carrying out their 
responsibilities under these procedures.
    (b) Information exchange. OFA with the aid of OIA, shall assist the 
Department of State and the Council on Environmental Quality in 
developing the informational exchange on environmental review 
activities with foreign nations.
    (c) Unidentified activities. The responsible official shall consult 
with OFA and OIA to establish the type of environmental review or 
document appropriate for any new EPA activities or requirements imposed 
upon EPA by statute, international agreement or other agreements.

[FR Doc. E6-21402 Filed 12-18-06; 8:45 am]
BILLING CODE 6560-50-P