[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 35442-35577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08792]



[[Page 35441]]

Vol. 89

Wednesday,

No. 85

May 1, 2024

Part IV





 Council on Environmental Quality





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





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

  Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules 
and Regulations  

[[Page 35442]]


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COUNCIL ON ENVIRONMENTAL QUALITY

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

[CEQ-2023-0003]
RIN 0331-AA07


National Environmental Policy Act Implementing Regulations 
Revisions Phase 2

AGENCY: Council on Environmental Quality.

ACTION: Final rule.

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

DATES: The effective date is July 1, 2024.

ADDRESSES: CEQ established a docket for this action under docket number 
CEQ-2023-0003. All documents in the docket are listed on 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel, 
202-395-5750, [email protected]; Megan Healy, Deputy Director for 
NEPA, 202-395-5750, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    This final rule completes a multiphase rulemaking process that CEQ 
initiated in 2021 to revise its regulations to improve implementation 
of the National Environmental Policy Act (NEPA). Throughout the 
process, CEQ engaged with agency experts who implement NEPA on a daily 
basis to develop revisions to the regulations to enhance the clarity of 
the regulatory text, improve the efficiency and effectiveness of the 
NEPA process, enhance regulatory certainty and address potential 
sources of litigation risk, and promote consistency across the Federal 
Government while recognizing the importance of providing agencies with 
flexibility to tailor their NEPA processes to the specific statutes and 
factual contexts in which they administer their programs and decisions. 
CEQ also engaged with individuals affected by agency implementation of 
NEPA, including representatives of Tribal Nations, environmental 
justice experts, and representatives of various industries, to gather 
input on how to improve the NEPA process. CEQ proposed and is now 
finalizing this rule to reflect the input CEQ has received, the decades 
of CEQ and agency experience implementing NEPA, and the recent 
statutory amendments to NEPA. This final rule will help agencies more 
successfully implement NEPA and facilitate a more efficient and 
effective environmental review process.

A. NEPA Statute

    To declare an ambitious and visionary national policy to promote 
environmental protection for present and future generations, Congress 
enacted NEPA in 1969 by a unanimous vote in the Senate and a nearly 
unanimous vote in the House,\1\ and President Nixon signed it into law 
on January 1, 1970. NEPA seeks to ``encourage productive and enjoyable 
harmony'' between humans and the environment, recognizing the 
``profound impact'' of human activity and the ``critical importance of 
restoring and maintaining environmental quality'' to the overall 
welfare of humankind. 42 U.S.C. 4321, 4331. Furthermore, NEPA seeks to 
promote efforts that will prevent or eliminate damage to the 
environment and biosphere and stimulate the health and welfare of 
people, making it the continuing policy of the Federal Government to 
use all practicable means and measures to create and maintain 
conditions under which humans and nature can exist in productive 
harmony and fulfill the social, economic, and other requirements of 
present and future generations of Americans. 42 U.S.C. 4331(a). It also 
recognizes that each person should have the opportunity to enjoy a 
healthy environment and has a responsibility to contribute to the 
preservation and enhancement of the environment. 42 U.S.C. 4331(c).
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    \1\ See Linda Luther, Cong. Rsch. Serv., RL33152, The National 
Environmental Policy Act: Background and Implementation, 4 (2011), 
https://crsreports.congress.gov/product/details?prodcode=RL33152.
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    NEPA requires Federal agencies to interpret and administer Federal 
policies, regulations, and laws in accordance with NEPA's policies and 
to consider environmental values in their decision making. 42 U.S.C. 
4332. To that end, section 102(2)(C) of NEPA requires Federal agencies 
to prepare ``detailed statement[s],'' referred to as environmental 
impact statements (EISs), for ``every recommendation or report on 
proposals for legislation and other major Federal actions significantly 
affecting the quality of the human environment'' and, in doing so, 
provide opportunities for public participation to help inform agency 
decision making. 42 U.S.C. 4332(2)(C). The EIS process embodies the 
understanding that informed decisions are better decisions and lead to 
better environmental outcomes when decision makers understand, 
consider, and publicly disclose environmental effects of their 
decisions. The EIS process also enriches understanding of the 
ecological systems and natural resources important to the Nation and 
helps guide sound decision making based on high-quality information, 
such as decisions on infrastructure and energy development.\2\ See, 
e.g., Winter v. NRDC, 555 U.S. 7, 23 (2008) (``Part of the harm NEPA 
attempts to prevent in requiring an EIS is that, without one, there may 
be little if any information about prospective environmental harms and 
potential mitigating measures.'').
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    \2\ See CEQ, The National Environmental Policy Act: A Study of 
Its Effectiveness after Twenty-five Years 17 (Jan. 1997) (noting 
that study participants, which included academics, nonprofit 
organizations, and businesses, ``applauded NEPA for opening the 
federal process to public input and were convinced that this open 
process has improved project design and implementation.'').
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    In many respects, NEPA was a statute ahead of its time and remains 
vital today. It codifies the common-sense idea of ``look before you 
leap'' to guide agency decision making, particularly in complex and 
consequential areas, because conducting sound environmental analysis 
before agencies take actions reduces conflict and waste in the long run 
by avoiding unnecessary harm and uninformed decisions. See, e.g., 42 
U.S.C. 4332; Laclede Gas Co. v. FERC, 873 F.2d 1494, 1499 (D.C. Cir. 
1989) (``When so much depends upon the agency having a sure footing, it 
is not too much for us to demand that it look first, and then leap if 
it likes.''). It establishes a framework for agencies to ground 
decisions in science, by

[[Page 35443]]

requiring professional and scientific integrity, and recognizes that 
the public may have important ideas and information on how Federal 
actions can occur in a manner that reduces potential harms and enhances 
ecological, social, and economic well-being. See, e.g., 42 U.S.C. 4332.
    On June 3, 2023, President Biden signed into law the Fiscal 
Responsibility Act of 2023, which included amendments to NEPA. 
Specifically, it amended section 102(2)(C) and added sections 102(2)(D) 
through (F) and sections 106 through 111. 42 U.S.C. 4332(2)(C)-(D), 
4336-4336e. The amendments codify longstanding principles drawn from 
CEQ's NEPA regulations, decades of agency practice, and case law 
interpreting the NEPA regulations, and provide additional direction to 
improve the efficiency and effectiveness of the NEPA process consistent 
with NEPA's purposes. Section 102(2)(C) provides that EISs should 
include discussion of reasonably foreseeable environmental effects of 
the proposed action, reasonably foreseeable adverse environmental 
effects that cannot be avoided, and a reasonable range of alternatives 
to the proposed action; section 102(2)(D) requires Federal agencies to 
ensure the professional integrity of the discussion and analysis in an 
environmental document; section 102(2)(E) requires use of reliable data 
and resources when carrying out NEPA; and section 102(2)(F) requires 
agencies to study, develop, and describe technically and economically 
feasible alternatives. 42 U.S.C. 4332(2)(C)-(F).
    Section 106 adds provisions for determining the appropriate level 
of NEPA review. It clarifies that an agency is required to prepare an 
environmental document when proposing to take an action that would 
constitute a final agency action, and codifies existing regulations and 
case law that an agency is not required to prepare an environmental 
document when doing so would clearly and fundamentally conflict with 
the requirements of another law or a proposed action is non-
discretionary. See Flint Ridge Development Co. v. Scenic Rivers Ass'n 
of Oklahoma, 426 U.S. 776, 791 (1976) (holding that a 30-day statutory 
deadline for a certain agency action created a ``clear and fundamental 
conflict of statutory duty'' that excused the agency from NEPA 
compliance with regard to that action); Dep't of Transp. v. Pub. 
Citizen, 541 U.S. 752, 756 (2004) (concluding that NEPA did not require 
an agency to evaluate the environmental effects of certain actions 
because the agency lacked discretion over those actions). Section 106 
also largely codifies the current CEQ regulations and longstanding 
practice with respect to the use of categorical exclusions (CEs), 
environmental assessments (EAs), and EISs, as modified by the new 
provision expressly permitting agencies to adopt CEs from other 
agencies established in section 109 of NEPA. 42 U.S.C. 4336, 4336c.
    Section 107 addresses timely and unified Federal reviews, largely 
codifying existing practice with a few adjustments, including 
provisions clarifying lead, joint-lead, and cooperating agency 
designations, generally requiring development of a single environmental 
document, directing agencies to develop procedures for project sponsors 
to prepare EAs and EISs, and prescribing page limits and deadlines. 42 
U.S.C. 4336a. Section 108 codifies time lengths and circumstances for 
when agencies can rely on programmatic environmental documents without 
additional review, and section 109 allows a Federal agency to adopt and 
use another agency's CE. 42 U.S.C. 4336b, 4336c. Section 111 adds 
statutory definitions. 42 U.S.C. 4336e. This final rule updates the 
regulations to address how agencies should implement NEPA consistent 
with these recent amendments.
    Section 110 directs CEQ to conduct a study and submit a report to 
Congress on the potential to use online and digital technologies to 
improve NEPA processes. The development of this report is outside the 
scope of this rulemaking and the final rule does not incorporate 
provisions related to implementation of section 110.

B. The Council on Environmental Quality

    NEPA codified the existence of the Council on Environmental Quality 
(CEQ), which had been established 6 months earlier through E.O. 11472, 
Establishing the Environmental Quality Council and the Citizen's 
Advisory Committee on Environmental Quality, as a component of the 
Executive Office of the President. 42 U.S.C. 4342. For more than 50 
years, CEQ has advised presidents on national environmental policy, 
assisted Federal agencies in their implementation of NEPA and engaged 
with them on myriad of environmental policies, and overseen 
implementation of a variety of other environmental policy initiatives 
from the expeditious and thorough environmental review of 
infrastructure projects \3\ to the sustainability of Federal 
operations.\4\
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    \3\ See, e.g., E.O. 14008, Tackling the Climate Crisis at Home 
and Abroad, 86 FR 7619 (Feb. 1, 2021); E.O. 13604, Improving 
Performance of Federal Permitting and Review of Infrastructure 
Projects, 77 FR 18887 (Mar. 28, 2012); E.O. 13274, Environmental 
Stewardship and Transportation Infrastructure Project Reviews, 67 FR 
59449 (Sept. 23, 2002); see also Presidential Memorandum, 
Modernizing Federal Infrastructure Review and Permitting 
Regulations, Policies, and Procedures, 78 FR 30733 (May 22, 2013).
    \4\ See, e.g., E.O. 14057, Catalyzing Clean Energy Industries 
and Jobs Through Federal Sustainability, 86 FR 70935 (Dec. 13, 
2021); E.O. 13834, Efficient Federal Operations, 83 FR 23771 (May 
22, 2018); E.O. 13693, Planning for Federal Sustainability in the 
Next Decade, 80 FR 15871 (Mar. 25, 2015); E.O. 13514, Federal 
Leadership in Environmental, Energy, and Economic Performance, 74 FR 
52117 (Oct. 8, 2009); E.O. 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management, 72 FR 3919 
(Jan. 26, 2007); E.O. 13101, Greening the Government Through Waste 
Prevention, Recycling, and Federal Acquisition, 63 FR 49643 (Sept. 
16, 1998). For Presidential directives pertaining to other 
environmental initiatives, see E.O. 13432, Cooperation Among 
Agencies in Protecting the Environment With Respect to Greenhouse 
Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad 
Engines, 72 FR 27717 (May 16, 2007) (requiring CEQ and OMB to 
implement the E.O. and facilitate Federal agency cooperation to 
reduce greenhouse gas emissions); E.O. 13141, Environmental Review 
of Trade Agreements, 64 FR 63169 (Nov. 18, 1999) (requiring CEQ and 
the U.S. Trade Representative to implement the E.O., which has the 
purpose of promoting Trade agreements that contribute to sustainable 
development); E.O. 13061, Federal Support of Community Efforts Along 
American Heritage Rivers, 62 FR 48445 (Sept. 15, 1997) (charging CEQ 
with implementing the American Heritage Rivers initiative); E.O. 
13547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, 75 
FR 43023 (July 22, 2010) (directing CEQ to lead the National Ocean 
Council); E.O. 13112, Invasive Species, 64 FR 6183 (Feb. 8, 1999) 
(requiring the Invasive Species Council to consult with CEQ to 
develop guidance to Federal agencies under NEPA on prevention and 
control of invasive species).
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    NEPA charges CEQ with overseeing and guiding NEPA implementation 
across the Federal Government. In addition to issuing the regulations 
for implementing NEPA, 40 CFR parts 1500 through 1508 (referred to 
throughout as ``the CEQ regulations''), CEQ has issued guidance on 
numerous topics related to NEPA review. In 1981, CEQ issued the ``Forty 
Most Asked Questions Concerning CEQ's National Environmental Policy Act 
Regulations,'' \5\ which CEQ has routinely identified as an invaluable 
tool for Federal, Tribal, State, and local governments and officials, 
and members of the public, who have questions about NEPA 
implementation.
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    \5\ CEQ, Forty Most Asked Questions Concerning CEQ's National 
Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981) 
(Forty Questions), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act.
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    CEQ also has issued guidance on a variety of other topics, from 
scoping to cooperating agencies to consideration of

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effects.\6\ For example, in 1997, CEQ issued guidance documents on the 
consideration of environmental justice in the NEPA context \7\ under 
E.O. 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations,\8\ and on analysis of 
cumulative effects in NEPA reviews.\9\ From 2010 to the present, CEQ 
developed additional guidance on CEs, mitigation, programmatic reviews, 
and consideration of greenhouse gas (GHG) emissions in NEPA.\10\ To 
ensure coordinated environmental reviews, CEQ has issued guidance to 
integrate NEPA reviews with other environmental review requirements 
such as the National Historic Preservation Act, E.O. 11988, Floodplain 
Management, and E.O. 11990, Protection of Wetlands.\11\ Additionally, 
CEQ has provided guidance to ensure efficient and effective 
environmental reviews, particularly for infrastructure projects.\12\ 
Finally, CEQ has published resources for members of the public to 
assist them in understanding the NEPA process and how they can 
effectively engage in agency NEPA reviews to make sure their voices are 
heard.\13\
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    \6\ See, e.g., CEQ, Memorandum for General Counsels, NEPA 
Liaisons and Participants in Scoping (Apr. 30, 1981), https://www.energy.gov/nepa/downloads/scoping-guidance-memorandum-general-counsels-nepa-liaisons-and-participants-scoping; CEQ, Incorporating 
Biodiversity Considerations Into Environmental Impact Analysis Under 
the National Environmental Policy Act (Jan. 1993), https://ceq.doe.gov/publications/incorporating_biodiversity.html; CEQ, 
Council on Environmental Quality Guidance on NEPA Analyses for 
Transboundary Impacts (July 1,1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memorandum-transboundary-impacts-070197.pdf; CEQ, Designation of Non-Federal Agencies to be 
Cooperating Agencies in Implementing the Procedural Requirements of 
the National Environmental Policy Act (July 28, 1999), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ceqcoop.pdf; CEQ, 
Identifying Non-Federal Cooperating Agencies in Implementing the 
Procedural Requirements of the National Environmental Policy Act 
(Sept. 25, 2000), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/memo-non-federal-cooperating-agencies-09252000.pdf; CEQ & 
DOT Letters on Lead and Cooperating Agency Purpose and Need (May 12, 
2003), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf.
    \7\ CEQ, Environmental Justice: Guidance under the National 
Environmental Policy Act (Dec. 10, 1997) (Environmental Justice 
Guidance), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.
    \8\ E.O. 12898, Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 
16, 1994).
    \9\ CEQ, Considering Cumulative Effects Under the National 
Environmental Policy Act (Jan. 1997), https://ceq.doe.gov/publications/cumulative_effects.html; see also CEQ, Guidance on the 
Consideration of Past Actions in Cumulative Effects Analysis (June 
24, 2005), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf.
    \10\ CEQ, Establishing, Applying, and Revising Categorical 
Exclusions under the National Environmental Policy Act (Nov. 23, 
2010) (CE Guidance), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; CEQ, Final Guidance for 
Federal Departments and Agencies on the Appropriate Use of 
Mitigation and Monitoring and Clarifying the Appropriate Use of 
Mitigated Findings of No Significant Impact, 76 FR 3843 (Jan. 21, 
2011) (Mitigation Guidance), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; CEQ, National 
Environmental Policy Act Guidance on Consideration of Greenhouse Gas 
Emissions and Climate Change, 88 FR 1196 (Jan. 9, 2023) (2023 GHG 
Guidance), https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html.
    \11\ CEQ, Implementation of Executive Order 11988 on Floodplain 
Management and Executive Order 11990 on Protection of Wetlands (Mar. 
21, 1978), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Memorandum-Implementation-of-E.O.-11988-and-E.O.-11990-032178.pdf; 
CEQ & Advisory Council on Historic Preservation, NEPA and NHPA: A 
Handbook for Integrating NEPA and Section 106 (Mar. 2013), https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf.
    \12\ See, e.g., CEQ, Final Guidance on Improving the Process for 
Preparing Efficient and Timely Environmental Reviews Under the 
National Environmental Policy Act, 77 FR 14473 (Mar. 12, 2012), 
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; CEQ, Effective Use of 
Programmatic NEPA Reviews (Dec. 18, 2014) (Programmatic Guidance), 
https://www.energy.gov/sites/default/files/2016/05/f31/effective_use_of_programmatic_nepa_reviews_18dec2014.pdf; OMB & CEQ, 
M-15-20, Guidance Establishing Metrics for the Permitting and 
Environmental Review of Infrastructure Projects (Sept. 22, 2015), 
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2015/m-15-20.pdf; OMB & CEQ, M-17-14, Guidance to 
Federal Agencies Regarding the Environmental Review and 
Authorization Process for Infrastructure Projects (Jan. 13, 2017), 
https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/m-17-14.pdf.
    \13\ CEQ, A Citizen's Guide to the National Environmental Policy 
Act; Having Your Voice Heard (Jan. 2021), https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.
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    In addition to guidance, CEQ engages frequently with Federal 
agencies on their implementation of NEPA. CEQ is responsible for 
consulting with all agencies on the development of their NEPA 
implementing procedures and determining that those procedures conform 
with NEPA and the CEQ regulations. Through this process, CEQ engages 
with agencies to understand their specific authorities and programs to 
ensure agencies integrate consideration of environmental effects into 
their decision-making processes. CEQ also provides feedback and advice 
on how agencies may effectively implement NEPA through their 
procedures. Additionally, CEQ provides recommendations on how agencies 
can coordinate on or align their respective procedures to ensure 
consistent implementation of NEPA across agencies. This role is 
particularly important in situations where multiple agencies and 
applicants are regularly involved, such as the review of infrastructure 
projects.
    Second, CEQ consults with agencies on the efficacy and 
effectiveness of NEPA implementation. Where necessary or appropriate, 
CEQ engages with agencies on NEPA reviews for specific projects or 
project types to provide advice and identify any emerging or cross-
cutting issues that would benefit from CEQ issuing formal guidance or 
assisting with interagency coordination. This includes establishing 
alternative arrangements for compliance with NEPA when agencies 
encounter emergency situations where they need to act swiftly while 
also ensuring they meet their NEPA obligations. CEQ also advises on 
NEPA compliance when agencies are establishing new programs or 
implementing new statutory authorities. Finally, CEQ helps advance the 
environmental review process for projects or initiatives deemed 
important to an administration such as nationally and regionally 
significant projects, major infrastructure projects, and consideration 
of certain types of effects, such as climate change-related effects and 
effects on communities with environmental justice concerns.\14\
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    \14\ See, e.g., Presidential Memorandum, Speeding Infrastructure 
Development Through More Efficient and Effective Permitting and 
Environmental Review (Aug. 31, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more; E.O. 13807, Establishing Discipline and Accountability in the 
Environmental Review and Permitting Process for Infrastructure 
Projects, 82 FR 40463 (Aug. 24, 2017).
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    Third, CEQ meets regularly with external stakeholders to understand 
their perspectives on the NEPA process. These meetings can help inform 
CEQ's development of guidance or other initiatives and engagement with 
Federal agencies. Finally, CEQ coordinates with other Federal agencies 
and components of the White House on a wide array of environmental 
issues and reviews that intersect with the NEPA process, such as 
Endangered Species Act consultation or effects to Federal lands and 
waters from federally authorized activities.
    In addition to its NEPA responsibilities, CEQ is currently charged 
with implementing several of the administration's key environmental 
priorities, including efficient and effective environmental review and 
permitting. On January 27, 2021, the President signed E.O. 14008, 
Tackling the Climate Crisis at Home and Abroad, to establish a 
government-wide approach to the climate crisis by

[[Page 35445]]

reducing GHG emissions across the economy; increasing resilience to 
climate change-related effects; conserving land, water, and 
biodiversity; transitioning to a clean-energy economy; and advancing 
environmental justice, including delivering the benefits of Federal 
investments to disadvantaged communities.\15\ CEQ is leading the 
President's efforts to secure environmental justice consistent with 
sections 219 through 223 of the E.O. For example, CEQ has developed the 
Climate and Economic Justice Screening Tool,\16\ and collaborates with 
the Office of Management and Budget (OMB) and the National Climate 
Advisor on implementing the Justice40 initiative, which sets a goal 
that 40 percent of the overall benefits of certain Federal investments 
flow to disadvantaged communities.\17\
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    \15\ E.O. 14008, supra note 3.
    \16\ CEQ, Explore the Map, Climate and Economic Justice 
Screening Tool, https://screeningtool.geoplatform.gov/.
    \17\ E.O. 14008, supra note 3, sec. 223.
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    Section 205 of the E.O. also charged CEQ with developing the 
Federal Sustainability Plan to achieve a carbon pollution-free 
electricity sector and clean and zero-emission vehicle fleets. 
Thereafter, CEQ issued the Federal Sustainability Plan,\18\ which 
accompanied E.O. 14057, Catalyzing Clean Energy Industries and Jobs 
Through Federal Sustainability.\19\ CEQ is leading the efforts with its 
agency partners to implement E.O. 14057's ambitious goals, which 
include reducing Federal agency GHG emissions by 65 percent and 
improving the climate resilience of Federal infrastructure and 
operations. CEQ also is collaborating with the Departments of the 
Interior, Agriculture, and Commerce on the implementation of the 
America the Beautiful Initiative, which was issued to achieve the goal 
of conserving at least 30 percent of our lands and waters by 2030 as 
set forth in E.O. 14008.\20\ Additionally, E.O. 14008 requires the 
Chair of CEQ and the Director of OMB to ensure that Federal permitting 
decisions consider the effects of GHG emissions and climate change.\21\
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    \18\ CEQ, Federal Sustainability Plan (Dec. 2021), https://www.sustainability.gov/federalsustainabilityplan/.
    \19\ E.O. 14057, supra note 4.
    \20\ E.O. 14008, supra note 3.
    \21\ Id. at sec. 213(a); see also id., sec. 219 (directing 
agencies to ``make achieving environmental justice part of their 
missions by developing programs, policies, and activities to address 
the disproportionately high and adverse human health, environmental, 
climate-related and other cumulative impacts on disadvantaged 
communities'').
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    CEQ is also instrumental to the President's efforts to institute a 
government-wide approach to advancing environmental justice. On April 
21, 2023, the President signed E.O. 14096, Revitalizing Our Nation's 
Commitment to Environmental Justice for All, to further embed 
environmental justice into the work of Federal agencies and ensure that 
all people can benefit from the vital safeguards enshrined in the 
Nation's foundational environmental and civil rights laws.\22\ The E.O. 
charges each agency to make achieving environmental justice part of its 
mission consistent with the agency's statutory authority,\23\ and 
requires each agency to submit to the Chair of CEQ and make publicly 
available an Environmental Justice Strategic Plan setting forth the 
agency's goals and plans for advancing environmental justice.\24\ 
Further, section 8 of the E.O. establishes a White House Office of 
Environmental Justice within CEQ.
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    \22\ E.O. 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251 (Apr. 26, 2023). E.O. 
14096 builds upon efforts to advance environmental justice and 
equity consistent with the policy advanced in documents including 
E.O. 13985, E.O. 14091, and E.O. 14008, and supplements the 
foundational efforts of E.O. 12898 to deliver environmental justice 
to communities across America. See E.O. 13985, Advancing Racial 
Equity and Support for Underserved Communities Through the Federal 
Government, 86 FR 7009 (Jan. 25, 2021); E.O. 14091, Further 
Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government, 88 FR 10825 (Feb. 22, 2023); E.O. 
14008, supra note 3; and E.O. 12898, supra note 8.
    \23\ E.O. 14096, supra note 22, sec. 3.
    \24\ Id. at sec. 4.
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    Additionally, CEQ plays a significant role in improving interagency 
coordination and providing for efficient environmental reviews and 
permitting under the Biden-Harris Permitting Action Plan.\25\ The 
Action Plan outlines the Administration's strategy for ensuring that 
Federal environmental reviews and permitting processes are effective, 
efficient, and transparent, guided by the best available science to 
promote positive environmental and community outcomes, and shaped by 
early and meaningful public engagement. The Action Plan contains five 
key elements that build on strengthened Federal approaches to 
environmental reviews and permitting: (1) accelerating permitting 
through early cross-agency coordination to appropriately scope reviews, 
reduce bottlenecks, and use the expertise of sector-specific teams; (2) 
establishing clear timeline goals and tracking key project information 
to improve transparency and accountability, providing increased 
certainty for project sponsors and the public; (3) engaging in early 
and meaningful outreach and communication with Tribal Nations, States, 
Territories, and local communities; (4) improving agency 
responsiveness, technical assistance, and support to navigate the 
environmental review and permitting process effectively and 
efficiently; and (5) adequately resourcing agencies and using the 
environmental review process to improve environmental and community 
outcomes.
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    \25\ The Biden-Harris Permitting Action Plan to Rebuild 
America's Infrastructure, Accelerate the Clean Energy Transition, 
Revitalize Communities, and Create Jobs (May 22, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/05/Biden-Harris-Permitting-Action-Plan.pdf.
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    Finally, CEQ is staffed with experts with decades of NEPA 
experience as well as other environmental law and policy experience. As 
part of CEQ's broader environmental policy role, CEQ advises the 
President on environmental issues facing the nation, and on the design 
and implementation of the President's environmental initiatives. In 
that role, CEQ collaborates with agencies and provides feedback on 
their implementation of the numerous environmental statutes and 
directives. CEQ's diverse array of responsibilities and expertise has 
long influenced the implementation of NEPA, and CEQ relied extensively 
on this experience in developing this rulemaking.

C. NEPA Implementation 1970-2019

    Following shortly after the enactment of NEPA, President Nixon 
issued E.O. 11514, Protection and Enhancement of Environmental Quality, 
directing CEQ to issue guidelines for implementation of section 
102(2)(C) of NEPA.\26\ In response, CEQ in April 1970 issued interim 
guidelines, which addressed the provisions of section 102(2)(C) of the 
Act regarding EIS requirements.\27\ CEQ revised the guidelines in 1971 
and 1973 to address public involvement and introduce the concepts of 
EAs and draft and final EISs.\28\
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    \26\ E.O. 11514, Protection and Enhancement of Environmental 
Quality, 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
    \27\ See CEQ, Statements on Proposed Federal Actions Affecting 
the Environment, 35 FR 7390 (May 12, 1970) (interim guidelines).
    \28\ CEQ, Statements on Proposed Federal Actions Affecting the 
Environment, 36 FR 7724 (Apr. 23, 1971) (final guidelines); CEQ, 
Preparation of Environmental Impact Statements, 38 FR 10856 (May 2, 
1973) (proposed revisions to the guidelines); CEQ, Preparation of 
Environmental Impact Statements: Guidelines, 38 FR 20550 (Aug. 1, 
1973) (revised guidelines).
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    In 1977, President Carter issued E.O. 11991, Relating to Protection 
and Enhancement of Environmental Quality, amending E.O. 11514 and 
directing CEQ to issue regulations for implementation

[[Page 35446]]

of section 102(2)(C) of NEPA and requiring that Federal agencies comply 
with those regulations.\29\ CEQ promulgated its NEPA regulations in 
1978.\30\ Issued 8 years after NEPA's enactment, the NEPA regulations 
reflected CEQ's interpretation of the statutory text and Congressional 
intent, expertise developed through issuing and revising the CEQ 
guidelines and advising Federal agencies on their implementation of 
NEPA, initial interpretations of the courts, and Federal agency 
experience implementing NEPA. The 1978 regulations reflected the 
fundamental principles of informed and science-based decision making, 
transparency, and public engagement that Congress established in NEPA. 
The regulations further required agency-level implementation, directing 
Federal agencies to issue and periodically update agency-specific 
implementing procedures to supplement CEQ's procedures and integrate 
the NEPA process into the agencies' specific programs and processes. 
Consistent with 42 U.S.C. 4332(2)(B), the regulations also required 
agencies to consult with CEQ in the development or update of these 
agency-specific procedures to ensure consistency with CEQ's 
regulations.
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    \29\ E.O. 11991, Relating to Protection and Enhancement of 
Environmental Quality, 42 FR 26967 (May 25, 1977).
    \30\ CEQ, Implementation of Procedural Provisions; Final 
Regulations, 43 FR 55978 (Nov. 29, 1978).
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    CEQ made typographical amendments to the 1978 implementing 
regulations in 1979 \31\ and amended one provision in 1986 (CEQ refers 
to these regulations, as amended, as the ``1978 regulations'' in this 
preamble).\32\ Otherwise, CEQ left the regulations unchanged for over 
40 years. As a result, CEQ and Federal agencies developed extensive 
experience implementing the 1978 regulations, and a large body of 
agency practice and case law developed based on them. See, e.g., 
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355 (1989) 
(``CEQ regulations are entitled to substantial deference.''); Wild Va. 
v. Council on Env't Quality, 56 F.4th 281, 288 (4th Cir. 2022) (noting 
that prior to the 2020 rule, CEQ's NEPA regulations ``had remained 
virtually unchanged since 1978.'')
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    \31\ CEQ, Implementation of Procedural Provisions; Corrections, 
44 FR 873 (Jan. 3, 1979).
    \32\ CEQ, National Environmental Policy Act Regulations; 
Incomplete or Unavailable Information, 51 FR 15618 (Apr. 25, 1986) 
(amending 40 CFR 1502.22).
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D. 2020 Amendments to the CEQ Regulations

    On August 15, 2017, President Trump issued E.O. 13807, Establishing 
Discipline and Accountability in the Environmental Review and 
Permitting Process for Infrastructure Projects,\33\ which directed CEQ 
to establish and lead an interagency working group to identify and 
propose changes to the NEPA regulations.\34\ In response, CEQ issued an 
advance notice of proposed rulemaking (ANPRM) on June 20, 2018,\35\ and 
a notice of proposed rulemaking (NPRM) on January 10, 2020, proposing 
broad revisions to the 1978 regulations.\36\ A wide range of 
stakeholders submitted more than 12,500 comments on the ANPRM \37\ and 
1.1 million comments on the proposed rule,\38\ including from State and 
local governments, Tribes, environmental advocacy organizations, 
professional and industry associations, other advocacy or non-profit 
organizations, businesses, and private citizens. Many commenters 
provided detailed feedback on the legality, policy wisdom, and 
potential consequences of the proposed amendments. In keeping with the 
proposed rule, the final rule, promulgated on July 16, 2020 (2020 
regulations or 2020 rule), made wholesale revisions to the regulations; 
it took effect on September 14, 2020.\39\
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    \33\ E.O. 13807, supra note 14.
    \34\ Id. at sec. 5(e)(iii).
    \35\ CEQ, Update to the Regulations for Implementing the 
Procedural Provisions of the National Environmental Policy Act, 83 
FR 28591 (June 20, 2018).
    \36\ CEQ, Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 1684 
(Jan. 10, 2020).
    \37\ See Docket No. CEQ-2018-0001, Update to the Regulations for 
Implementing the Procedural Provisions of the National Environmental 
Policy Act, https://www.regulations.gov/document/CEQ-2018-0001-0001.
    \38\ See Docket No. CEQ-2019-0003, Update to the Regulations for 
Implementing the Procedural Provisions of the National Environmental 
Policy Act, https://www.regulations.gov/document/CEQ-2019-0003-0001.
    \39\ CEQ, Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 43304 
(July 16, 2020) (2020 Final Rule).
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    In the months that followed the issuance of the 2020 rule, five 
lawsuits were filed challenging the 2020 rule.\40\ These cases 
challenge the 2020 rule on a variety of grounds, including under the 
Administrative Procedure Act (APA), NEPA, and the Endangered Species 
Act, and contend that the rule exceeded CEQ's authority and that the 
related rulemaking process was procedurally and substantively 
defective. The district courts issued temporary stays in each of these 
cases, except for Wild Virginia v. Council on Environmental Quality, 
which the district court dismissed without prejudice on June 21, 
2021.\41\ The Fourth Circuit affirmed that dismissal on December 22, 
2022.\42\
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    \40\ Wild Va. v. Council on Env't Quality, No. 3:20cv45 (W.D. 
Va. 2020); Env't Justice Health All. v. Council on Env't Quality, 
No. 1:20cv06143 (S.D.N.Y. 2020); Alaska Cmty. Action on Toxics v. 
Council on Env't Quality, No. 3:20cv5199 (N.D. Cal. 2020); 
California v. Council on Env't Quality, No. 3:20cv06057 (N.D. Cal. 
2020); Iowa Citizens for Cmty. Improvement v. Council on Env't 
Quality, No. 1:20cv02715 (D.D.C. 2020). Additionally, in Clinch 
Coalition v. U.S. Forest Serv., No. 2:21cv00003 (W.D. Va. 2021), 
plaintiffs challenged the U.S. Forest Service's NEPA implementing 
procedures, which established new CEs, and, relatedly, the 2020 
rule's provisions on CEs.
    \41\ Wild Va. v. Council on Env't Quality, 544 F. Supp. 3d 620 
(W.D. Va. 2021).
    \42\ Wild Va. v. Council on Env't Quality, 56 F.4th 281 (4th 
Cir. 2022).
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E. CEQ's Review of the 2020 Regulations

    On January 20, 2021, President Biden issued E.O. 13990, Protecting 
Public Health and the Environment and Restoring Science To Tackle the 
Climate Crisis,\43\ to establish an administration policy to listen to 
the science; improve public health and protect our environment; ensure 
access to clean air and water; limit exposure to dangerous chemicals 
and pesticides; hold polluters accountable, including those who 
disproportionately harm communities of color and low-income 
communities; reduce GHG emissions; bolster resilience to the impacts of 
climate change; restore and expand the Nation's treasures and 
monuments; and prioritize both environmental justice and the creation 
of well-paying union jobs necessary to achieve these goals.\44\ The 
Executive Order calls for Federal agencies to review existing 
regulations issued between January 20, 2017, and January 20, 2021, for 
consistency with the policy it articulates and to take appropriate 
action.\45\ The Executive Order also revokes E.O. 13807 and directs 
agencies to take steps to rescind any rules or regulations implementing 
it.\46\ An accompanying White House fact sheet, published on January 
20, 2021, specifically identified the 2020 regulations for CEQ's review 
for consistency with E.O. 13990's policy.\47\
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    \43\ E.O. 13990, Protecting Public Health and the Environment 
and Restoring Science To Tackle the Climate Crisis, 86 FR 7037 (Jan. 
25, 2021).
    \44\ Id. at sec. 1.
    \45\ Id. at sec. 2.
    \46\ Id. at sec. 7.
    \47\ The White House, Fact Sheet: List of Agency Actions for 
Review (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.

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[[Page 35447]]

    Consistent with E.O. 13990 and E.O. 14008, CEQ has reviewed the 
2020 regulations and engaged in a multi-phase rulemaking process to 
ensure that the NEPA implementing regulations provide for sound and 
efficient environmental review of Federal actions, including those 
actions integral to tackling the climate crisis, in a manner that 
enables meaningful public participation, provides for an expeditious 
process, discloses climate change-related effects, advances 
environmental justice, respects Tribal sovereignty, protects our 
Nation's resources, and promotes better and more equitable 
environmental and community outcomes.
    On June 29, 2021, CEQ issued an interim final rule to amend the 
requirement in 40 CFR 1507.3(b) (2020) \48\ that agencies propose 
changes to existing agency-specific NEPA procedures to make those 
procedures consistent with the 2020 regulations by September 14, 
2021.\49\ CEQ extended the date by 2 years to avoid agencies proposing 
changes to agency-specific implementing procedures on a tight deadline 
to conform to regulations that were undergoing extensive review and 
would likely change in the near future.
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    \48\ In the preamble, CEQ uses the section symbol (Sec.  ) to 
refer to the proposed or final regulations; 40 CFR 150X.X (2020) or 
(2022) to refer to the current CEQ regulations as set forth in 40 
CFR parts 1500-1508, which this Final Rule amends; and 40 CFR 150X.X 
(2019) to refer to the CEQ regulations as they existed prior to the 
2020 rule.
    \49\ CEQ, Deadline for Agencies to Propose Updates to National 
Environmental Policy Act Procedures, 86 FR 34154 (June 29, 2021).
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    Next, on October 7, 2021, CEQ issued a ``Phase 1'' proposed rule to 
focus on a discrete set of provisions designed to restore three 
elements of the 1978 regulations, which CEQ finalized on April 20, 
2022.\50\ First, the Phase 1 rule revised 40 CFR 1502.13 (2020), with a 
conforming edit to 40 CFR 1508.1(z) (2020), to clarify that agencies 
have discretion to consider a variety of factors when assessing an 
application for authorization by removing a requirement that an agency 
base the purpose and need on the goals of an applicant and the agency's 
statutory authority. Second, CEQ removed language in 40 CFR 1507.3 
(2020) that could be construed to limit agencies' flexibility to 
develop or revise procedures to implement NEPA specific to their 
programs and functions that may go beyond CEQ's regulatory 
requirements. Finally, CEQ revised the definition of ``effects'' in 40 
CFR 1508.1(g) (2020) to restore the substance of the definitions of 
``effects'' and ``cumulative impacts'' contained in the 1978 
regulations.
---------------------------------------------------------------------------

    \50\ CEQ, National Environmental Policy Act Implementing 
Regulations Revisions, 86 FR 55757 (Oct. 7, 2021) (Phase 1 proposed 
rule); CEQ, National Environmental Policy Act Implementing 
Regulations Revisions, 87 FR 23453 (Apr. 20, 2022) (Phase 1 Final 
Rule).
---------------------------------------------------------------------------

    On July 31, 2023, CEQ published the Phase 2 notice of proposed 
rulemaking (proposed rule or NPRM), initiating a broader rulemaking to 
revise, update, and modernize the NEPA implementing regulations.\51\ 
Informed by CEQ's extensive experience implementing NEPA, public and 
agency input, and Congress's amendments to NEPA, CEQ proposed further 
revisions to improve the efficiency and effectiveness of environmental 
reviews; ensure that environmental reviews are guided by science and 
are consistent with the statute's text and purpose; enhance clarity and 
certainty for Federal agencies, project proponents, and the public; 
enable full and fair public participation and a process that informs 
the public about the potential environmental effects of agency actions; 
and ultimately promote better informed Federal decisions that protect 
and enhance the quality of the human environment, including by ensuring 
climate change, environmental justice, and other environmental issues 
are fully accounted for in agencies' decision-making processes.
---------------------------------------------------------------------------

    \51\ CEQ, National Environmental Policy Act Implementing 
Regulations Revision Phase 2, 88 FR 49924 (July 31, 2023) (Phase 2 
proposed rule).
---------------------------------------------------------------------------

    Publication of the proposed rule initiated a 60-day public comment 
period that concluded on September 29, 2023. CEQ held four virtual 
public meetings on the proposed rule on August 26, 2023; August 30, 
2023; September 11, 2023; and September 21, 2023, as well as two Tribal 
consultations on September 6, 2023, and September 12, 2023. CEQ 
received approximately 147,963 written comments and 86 oral comments in 
response to the proposed rule and considered these 148,049 comments in 
the development of this final rule. A majority of the comments 
(approximately 147,082) were campaign form letters sent in response to 
an organized initiative and are identical or very similar in form and 
content. CEQ received approximately 920 unique public comments, of 
which 540 were substantive comments on a variety of aspects of the 
rulemaking approach and contents of the proposed rule.
    The majority of the unique comments expressed overall or 
conditional support for the proposed rule. CEQ provides a summary of 
the comments received on the proposed rule and responses to those 
comment summaries in the document, ``National Environmental Policy Act 
Implementing Regulations Revision Phase 2 Response to Comments'' (Phase 
2 Response to Comments). Additionally, CEQ provides brief comment 
summaries and responses for many of the substantive comments it 
received as part of the summary and rationale for the final rule in 
section II.
    As discussed in section I.B, CEQ relies on its extensive experience 
overseeing and implementing NEPA in the development of this rule. CEQ 
has over 50 years of experience advising Federal agencies on the 
implementation of NEPA and is staffed by NEPA practitioners who have 
decades of experience implementing NEPA at agencies across the Federal 
Government as well as from outside the government, including State 
governments and applicants whose activities require Federal action. CEQ 
collaborates daily with Federal agencies on specific NEPA reviews, 
provides government-wide guidance on NEPA implementation, including the 
recent NEPA amendments, consults with agencies on the development of 
agency-specific NEPA implementing procedures and determines whether the 
procedures conform with NEPA and the CEQ regulations, and advises the 
President on a vast array of environmental issues. This experience also 
enables CEQ to contextualize the patchwork of fact-specific judicial 
decisions that have evolved under NEPA. This rulemaking seeks to bring 
clarity and predictability to Federal agencies and outside parties 
whose activities require Federal action and therefore trigger NEPA 
review, while also facilitating better environmental and social 
outcomes due to informed decision making.

II. Summary of and Rationale for the Final Rule

    This section summarizes the changes CEQ proposed to its NEPA 
implementing regulations in the notice of proposed rulemaking (NPRM or 
proposed rule), the public comments CEQ received on those proposed 
changes, a description of the revisions made through this final rule, 
and the rationale for those changes. CEQ's revisions fall into five 
general categories. First, CEQ makes revisions to the regulations to 
implement the amendments to NEPA made by the Fiscal Responsibility Act. 
Second, CEQ amends the regulations to enhance consistency and clarity. 
Third, CEQ revises the regulations based on decades of CEQ and agency 
experience implementing and complying with NEPA to improve the 
efficiency and

[[Page 35448]]

effectiveness of the environmental review process, foster science-based 
decision making, better effectuate NEPA's statutory purposes, and 
reflect developments in case law. Fourth, CEQ reverts to and revises 
for clarity certain language from the 1978 regulations, which were in 
effect for more than 40 years before the 2020 rule revised them, where 
CEQ determined the 1978 language provides clearer and more effective 
and predictable direction or guidance to implement NEPA. Fifth, CEQ 
removes certain provisions added by the 2020 rule that CEQ considers 
imprudent or legally unsettled, or that create uncertainty or ambiguity 
that could reduce efficiency or increase the risk of litigation. 
Outside of those revisions, CEQ retains many of the changes made in the 
2020 rulemaking, including changes that codified longstanding practice 
or guidance or enhanced the efficiency and effectiveness of the NEPA 
process. For example, CEQ identified for retention the inclusion of 
Tribal interests throughout the regulations, the integration of 
mechanisms to facilitate better interagency cooperation, and the 
reorganization and modernization of provisions addressing certain 
elements of the process to make the regulations easier to understand 
and follow. CEQ considers it important that the regulations meet 
current goals and objectives, including to promote the development of 
NEPA documents that are concise but also include the information needed 
to inform decision makers and reflect public input.
    In response to the Phase 1 proposed rule, CEQ received many 
comments on provisions not addressed in Phase 1. CEQ indicated in the 
Phase 1 Final Rule that it would consider such comments during the 
development of this Phase 2 rulemaking. CEQ has done so, and where 
applicable, this final rule provides a high-level summary of the 
important issues raised in those public comments. Where CEQ has 
retained provisions as finalized in the Phase 1 rulemaking, CEQ 
incorporates by reference the discussion of those provisions in the 
Phase 1 proposed and final rule, as well as the Phase 1 Response to 
Comments.\52\ CEQ is revising and republishing the entirety of the NEPA 
regulations, Subpart A of Chapter V, Title 40 of the Code of Federal 
Regulations.\53\
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    \52\ CEQ, Phase 1 proposed rule, supra note 50; CEQ, Phase 1 
Final Rule, supra note 50; CEQ, National Environmental Policy Act 
Implementing Regulations Revision Phase 1 Response to Comments (Apr. 
2022) (Phase 1 Response to Comments), https://www.regulations.gov/document/CEQ-2021-0002-39427.
    \53\ Consistent with guidance from the Office of Federal 
Register, republishing the provisions that are unchanged in this 
rulemaking provides context for the revisions. See Office of the 
Federal Register, Amendatory Instruction: Revise and Republish, 
https://www.archives.gov/federal-register/write/ddh/revise-republish.
---------------------------------------------------------------------------

A. Changes Throughout Parts 1500-1508

    In the NPRM, CEQ proposed several revisions throughout parts 1500 
through 1508 to provide consistency, improve clarity, and correct 
grammatical errors. CEQ proposed clarifying edits because unclear 
language can create confusion and undermine consistent implementation, 
thereby improving the efficiency of the NEPA process and reducing the 
risk of litigation.
    For these reasons, CEQ proposed to change the word ``impact'' to 
``effect'' throughout the regulations where this term is used as a noun 
because these two words are synonymous, with three exceptions. The 
regulations would continue to refer to a finding of no significant 
impact (FONSI) because that term has been widely used and recognized 
and making the substitution of effect for impact in that instance could 
create confusion rather than add clarity, and environmental impact 
statement because this term is used in the NEPA statute. Third, CEQ 
proposed to use ``cumulative impact'' in the definition of 
``environmental justice'' as discussed further in section II.J.9. CEQ 
makes these change in the final rule as proposed.
    Also, to enhance clarity, CEQ proposed to use the word 
``significant'' only to modify the term ``effects'' throughout the 
regulations. Accordingly, where ``significant'' modifies a word other 
than ``effects,'' CEQ proposed to replace ``significant'' with another 
synonymous adjective, typically ``important'' or ``substantial,'' which 
have also been used in varying provisions throughout the CEQ 
regulations since 1978. CEQ proposed this change to avoid confusion 
about what ``significant'' means in these other contexts without 
substantively changing any of the provisions so revised.
    CEQ proposed this change based on public comments and agency 
feedback on the Phase 1 rulemaking that use of the word ``significant'' 
in phrases such as ``significant issues'' or ``significant actions'' 
creates confusion on what the word ``significant'' means.\54\ CEQ also 
proposed the change to align with the definition of ``significant 
effects'' in Sec.  1508.1(mm), as discussed in section II.J.24.
---------------------------------------------------------------------------

    \54\ CEQ, Phase 1 Response to Comments, supra note 52, at 120-
21.
---------------------------------------------------------------------------

    One commenter supported the use of ``important'' in place of 
``significant,'' asserting that the change will reduce unnecessary 
confusion and delays because use of consistent terminology will 
eliminate ambiguity and increase consistency and will speed up future 
reviews because all parties will understand what is meant by a term. A 
few other commenters supported the changes in terms generally, saying 
that the changes help make the NEPA regulations easier to understand.
    A separate commenter supported the use of the term ``important'' 
arguing that it would broaden the scope of what agencies should 
consider under NEPA. The commenter described significance, in the 
context of NEPA, as a high bar, and agreed with CEQ that important 
issues should also be subject to thorough consideration in 
environmental reviews.
    Multiple commenters disagreed with the proposed use of 
``important'' in place of ``significant'' or ``unimportant'' in place 
of ``insignificant.'' These commenters expressed concern about the 
interpretation of ``important'' without a definition or additional 
guidance, and that the use of these adjectives could cause confusion 
and increase litigation risk. A few commenters requested that the final 
rule replace ``issues'' with ``effects'' and change ``important 
issues'' to ``significant effects'' asserting that the phrase 
``important issues'' is subjective. One commenter stated that while CEQ 
described the changes as minor, these terms are well understood by 
courts and agencies and as such changing them will result in numerous 
updates of related procedures, regulations, and guidance documents that 
use these terms just for editorial purposes.
    Another commenter expressed concern that replacing the word 
``significant'' with another adjective is unnecessary, and points to 
CEQ's own description in the NPRM that it does not intend to 
``substantively change the meaning of the provisions'' and suggesting 
the replacement words will be synonymous. The commenter further 
asserted that it will be difficult to ensure consistency of 
implementation if CEQ continually changes language that has no 
substantive effect on the regulations.
    A separate commenter asserted that while they appreciated the 
return of the definition of ``significance,'' the use of the new term 
``important'' is confusing. The commenter further stated that with the 
heightened focus on environmental justice, human health, and social or 
societal effects, it is unclear what is

[[Page 35449]]

considered important and who determines whether something is important.
    CEQ implements this change from ``significant'' to one of its 
synonyms when it is not modifying ``effect'' in the final rule. The 
NEPA regulations have long required agencies to focus on the 
``important'' issues, see 40 CFR 1500.1 (2019), and agencies have 
decades of experience doing just that--CEQ disagrees that use of this 
term in other provisions as a substitute for ``significant issues'' 
alters the scope of the issues to which those provisions refer. CEQ 
declines to add a definition for this term because its plain meaning is 
sufficient and notes that the phrase ``significant issues'' was not 
defined in the 1978 regulations.\55\ CEQ's intent is that agencies 
focus their NEPA documents on the issues that are key for the public to 
comment on and the agency to take into account in the decision-making 
process, and only briefly explain why other, unimportant issues are not 
discussed. As CEQ indicated in the proposed rule, it does not intend 
the substitution of ``important'' and ``substantial'' for 
``significant'' to substantively change the meaning of the provisions, 
but rather to bring greater consistency and clarity to agencies in 
implementing these provisions by eliminating a potential ambiguity that 
these phrases incorporate the definition of ``significant effects''; 
for example, ensuring that the phrase ``significant actions'' is not 
mistakenly understood to mean actions that have significant effects, 
which was not the meaning of the phrase in the regulations. CEQ 
discusses comments on specific uses of the terms in specific sections 
of the rule and in the Phase 2 Response to Comments.
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    \55\ See, e.g., Significant, Merriam-Webster, https://www.merriam-webster.com/dictionary/significant (defining 
``significant'' as ``having or likely to have influence or effect: 
IMPORTANT'').
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    For clarity, CEQ proposed to change ``statement'' to 
``environmental impact statement'' and ``assessment'' to 
``environmental assessment'' where the regulations only use the short 
form in the paragraph. See, e.g., Sec. Sec.  1502.3 and 1506.3(e)(1) 
through (e)(3). CEQ did not receive comments on this proposal and makes 
these changes throughout the rule as proposed.
    CEQ also proposed to make non-substantive grammatical corrections 
or consistency edits throughout the regulations where CEQ considered 
the changes to improve readability. Finally, CEQ proposed to update the 
authorities for each part, update the references to NEPA as amended by 
the Fiscal Responsibility Act, and fix internal cross references to 
other sections of the regulations throughout to follow the correct 
Federal Register format. CEQ makes these changes in the final rule.

B. Revisions To Update Part 1500, Purpose and Policy

    CEQ proposed substantive revisions to all sections in part 1500. 
These revisions include reinstating Sec.  1500.2, ``Policy,'' as its 
own section separate from Sec.  1500.1, ``Purpose'' consistent with the 
approach taken in the 1978 regulations. Some commenters recommended 
that CEQ title Sec.  1500.1 ``Purpose and Policy'' and title Sec.  
1500.2 ``Additional Policy'' because, in their view, Sec.  1500.2 
reflects CEQ's policy judgments rather than the commands of the NEPA 
statute.
    CEQ declines to make this change. The purpose of Sec. Sec.  1500.1 
and 1500.2 is to place the regulations into their broader context by 
restating the policies of the Act within the regulations, which will 
improve readability by avoiding the need for cross references to 
material outside the text of the regulations. Section 1500.2 reflects 
CEQ's interpretation of the policies of the Act, rather than CEQ's own 
policy priorities.
1. Purpose (Sec.  1500.1)
    In Sec.  1500.1, CEQ proposed to restore much of the language from 
the 1978 regulations with revisions to further incorporate the policies 
Congress established in the NEPA statute. CEQ proposed these changes to 
restore text regarding NEPA's purpose and goals, placing the 
regulations into their broader context and to restate the policies of 
the Act within the regulations. Some commenters expressed general 
support for proposed Sec.  1500.1 stating that the revisions 
appropriately frame NEPA's purposes. CEQ revises Sec.  1500.1 as 
discussed in this section to recognize that the procedural provisions 
of NEPA are intended to further the purpose and goals of the Act. One 
of those goals is to make informed and sound government decisions.
    First, CEQ proposed to revise paragraph (a) of 40 CFR 1500.1 (2020) 
by subdividing it into paragraphs (a), (a)(1), and (a)(2). In paragraph 
(a), CEQ proposed to revise the first sentence to restore language from 
the 1978 regulations stating that NEPA is ``the basic national charter 
for protection of the environment'' and add a new sentence stating that 
NEPA ``establishes policy, sets goals'' and ``provides direction'' for 
carrying out the principles and policies Congress established in 
sections 101 and 102 of NEPA. 42 U.S.C. 4331, 4332. CEQ proposed to 
remove language from the first sentence of paragraph (a) describing 
NEPA as a purely procedural statute because CEQ considers that language 
to be an inappropriately narrow view of NEPA's purpose and ignores the 
fact that Congress established the NEPA process for the purpose of 
promoting informed decision making and improved environmental outcomes.
    Some commenters objected to the proposed use of the phrase ``basic 
national charter for protection of the environment'' in paragraph (a), 
asserting it misrepresents NEPA's purpose as a procedural statute. 
Other commenters opposed the proposed changes to remove the language 
clarifying that NEPA is a procedural statute, asserting the proposed 
changes could give the impression that CEQ seeks to expand NEPA beyond 
its original mandate.
    Another commenter objected to the restoration of the language in 
paragraph (a) asserting that describing NEPA as the ``basic national 
charter for the protection of the environment'' displaces the U.S. 
Constitution from the role of ``America's basic national charter for 
protection.'' CEQ declines to remove this language, which accurately 
describes NEPA's purpose, was included in the 1978 regulations, and 
remained in place until the 2020 rule. CEQ disagrees that describing 
NEPA as the basic national charter for the protection of the 
environment denigrates the role of the U.S. Constitution. Congress 
enacted NEPA exercising its Constitutional authority to declare a 
national environmental policy and describing NEPA as ``America's basic 
national charter for the protection of the environment'' does not imply 
that NEPA overshadows the U.S. Constitution. CEQ also notes that 
several courts have quoted this language approvingly. See, e.g., Ctr. 
for Biological Diversity v. Bernhardt, 982 F.3d 723, 734 (9th Cir. 
2020); Habitat Educ. Ctr., Inc. v. United States Forest Serv., 673 F.3d 
518, 533 (7th Cir. 2012).
    In the final rule, CEQ revises paragraph (a) as proposed, but 
removes the parenthetical references to sections 101 and 102 as 
unnecessary and incomplete because other sections of NEPA also provide 
direction for carrying out NEPA's policy, which are addressed 
throughout the regulations. While CEQ agrees that the NEPA analysis 
required by section 102(2)(C) and these regulations does not dictate a 
particular outcome, Congress did not establish NEPA to create procedure 
for procedure's sake, but rather, to provide for better informed 
Federal decision making and improved environmental

[[Page 35450]]

outcomes. These goals are not fulfilled if the NEPA analysis is treated 
merely as a check-the-box exercise. 42 U.S.C. 4332(2)(C). CEQ does not 
consider it necessary to repeatedly emphasize in the regulations the 
procedural nature of the statutory mechanism Congress chose to advance 
the purposes of NEPA as described in section 2 and the policy 
directions established in section 101 of NEPA. 42 U.S.C. 4321, 4331. 
Doing so may suggest that NEPA mandates a rote paperwork exercise and 
de-emphasizes the Act's larger goals and purposes. Instead, CEQ remains 
cognizant of the goals Congress intended to achieve through the NEPA 
process in developing CEQ's implementing regulations, and agencies 
should carry out NEPA's procedural requirements in a manner faithful to 
the purposes of the statute.
    Second, in Sec.  1500.1(a)(1), CEQ proposed to retain the second 
sentence of 40 CFR 1500.1(a) (2020) summarizing section 101(a) of NEPA, 
change ``man'' to ``people'' to remove gendered language, and delete 
``of Americans'' after ``present and future generations.'' 42 U.S.C. 
4331(a). CEQ proposed to add a second sentence summarizing section 
101(b) to clarify that agencies should advance the purposes in section 
101(b) through their NEPA reviews. 42 U.S.C. 4331(b). CEQ proposed to 
include this language in Sec.  1500.1(a)(1) to help agencies understand 
what the regulations refer to when the regulations direct or encourage 
agencies to act in a manner consistent with the purposes or policies of 
the Act. See, e.g., Sec. Sec.  1500.2(a), 1500.6, 1501.1(a), 1502.1(a), 
and 1507.3(b).
    Some commenters objected to the proposal to remove ``of Americans'' 
from paragraph (a)(1) contending that the removal would be inconsistent 
with the statute. After considering these comments, CEQ has determined 
not to make this change and leave the phrase ``of Americans'' at the 
end of the first sentence of paragraph (a)(1), because this sentence is 
specifically describing section 101(a) of NEPA, which includes the 
phrase. However, CEQ notes that this text in section 101(a) and 
paragraph (a)(1) does not limit NEPA's concerns solely to Americans or 
the United States. For example, other language in section 101 reflects 
NEPA's broader purpose to ``create and maintain conditions under which 
[humans] and nature can exist in productive harmony'' without 
qualification. 42 U.S.C. 4331(a). As discussed further in section 
II.J.13, CEQ removes ``of Americans'' from the definition of ``human 
environment'' in Sec.  1508.1(r) for consistency with the statute's 
overall broader purpose.
    A commenter recommended CEQ add a dash after ``national policy'' in 
the second sentence for consistency with the statute to ensure that all 
six of the goals are modified by the phrase ``consistent with 
considerations of national policy.'' CEQ agrees that the beginning of 
the sentence, including the phrase ``consistent with other essential 
considerations of national policy'' modifies all of the listed items 
that follow and, in the final rule, revises the sentence to subdivide 
it into paragraphs (a)(1)(i) through (vi) to make this clarification. 
Lastly in paragraph (a)(1), in the final rule, CEQ changes ``man'' to 
``humans'' rather than the proposed ``people'' to remove the gendered 
language while also providing consistency with the term ``human'' and 
``human environment'' used in the NEPA statute and throughout the 
regulations.
    Third, CEQ proposed to begin Sec.  1500.1(a)(2) with the third 
sentence of 40 CFR 1500.1(a) (2020), modify it, and add two new 
sentences to generally restore the language of the 1978 regulations 
stating that the purpose of the regulations is to convey what agencies 
should and must do to comply with NEPA to achieve its purpose. 
Specifically, CEQ proposed to revise the first sentence to state that 
section 102(2) of NEPA establishes the procedural requirements to carry 
out the policies ``and responsibilities established'' in section 101, 
and contains `` `action-forcing' procedural provisions to ensure 
Federal agencies implement the letter and spirit of the Act.'' 42 
U.S.C. 4332(2), 42 U.S.C. 4331. CEQ proposed to add a new second 
sentence stating the purpose of the regulations is to set forth what 
agencies must and should do to comply with the procedures and achieve 
the goals of the Act. In the third new sentence, CEQ proposed to 
restore the language from the 1978 regulations that the President, 
Federal agencies, and the courts share responsibility for enforcing the 
Act to achieve the policy goals of section 101. 42 U.S.C. 4331.
    Fourth, CEQ proposed to strike the fourth and fifth sentences of 40 
CFR 1500.1(a) (2020), added by the 2020 rule, which state that NEPA 
requires Federal agencies to provide a detailed statement for major 
Federal actions, that the purpose and function of NEPA is satisfied if 
agencies have considered environmental information and informed the 
public, and that NEPA does not mandate particular results. While the 
NEPA process does not mandate that agencies reach specific decisions, 
CEQ proposed to remove this language because CEQ considered this 
language to unduly minimize Congress's understanding that procedures 
ensuring that agencies analyze, consider, and disclose environmental 
effects will lead to better substantive outcomes. CEQ also considered 
this language inconsistent with Congress's statements of policy in the 
NEPA statute.
    Some commenters objected specifically to the proposed addition of 
the phrase ``action-forcing,'' and others contended that the proposed 
rule would revise the regulation not merely to force action, but to 
require specific outcomes. Another commenter asserted that proposed 
paragraph (a)(2) goes too far in separating policy goals from the 
procedures passed by Congress to achieve them.
    CEQ finalizes paragraph (a)(2) as proposed and removes the language 
that describes NEPA as a purely procedural statute because CEQ 
considers the language to reflect an inappropriately narrow view of 
NEPA's purpose that minimizes Congress's broader goals in enacting the 
statute, as specified in sections 2 and 101 of NEPA. 42 U.S.C. 4321, 
4331. While NEPA does not mandate particular results in specific 
decision-making processes, Congress intended the procedures required 
under the Act to result in more informed decisions, with the goal that 
information about the environmental effects of those decision would 
facilitate better environmental outcomes. See, e.g., Andrus v. Sierra 
Club, 442 U.S. 347, 350-51 (1979) (``If environmental concerns are not 
interwoven into the fabric of agency planning, the action-forcing 
characteristics of [NEPA] would be lost.'').
    Fifth, CEQ proposed to strike the first two sentences of 40 CFR 
1500.1(b) (2020), which the 2020 rule added, because they provide an 
unnecessarily narrow view of the purposes of NEPA and its implementing 
regulations. CEQ proposed to revise the third sentence and add two new 
sentences to restore in paragraph (b) language from the 1978 
regulations emphasizing the importance of the early identification of 
high-quality information that is relevant to a decision. Early 
identification and consideration of issues using high-quality 
information have long been fundamental to the NEPA process, 
particularly because such identification and consideration facilitates 
comprehensive analysis of alternatives and timely and efficient 
decision making, and CEQ considers it important to emphasize these 
considerations in this section. CEQ also proposed the changes to 
emphasize that the environmental information that agencies

[[Page 35451]]

use in the NEPA process should be high-quality, science-based, and 
accessible.
    Multiple commenters supported the proposed provisions of Sec.  
1500.1(b). One commenter supported the provision for agencies to 
``concentrate on the issues that are truly relevant to the action in 
question, rather than amassing needless detail,'' and to use ``high 
quality, science-based, and accessible'' information. One commenter 
recommended that CEQ revise ``Most important'' to ``Most importantly'' 
in Sec.  1500.1(b). CEQ agrees that this change would improve the 
readability of the sentence and makes this clarifying edit in the final 
rule.
    Other commenters opposed the change to proposed paragraph (b), 
asserting it would delete important regulatory text. The commenters 
asserted that by striking the language, CEQ has turned the section from 
one that says follow the rules into one that adds to the rules. Upon 
further consideration, CEQ has determined not to finalize the proposed 
revisions to the beginning of paragraph (b) because the text from the 
1978 regulations could be construed as a direction to agencies rather 
than a statement about the purpose of the CEQ regulations. 
Specifically, the final rule retains ``[t]he regulations in this 
subchapter implement'' from the current regulations and then replaces 
``section 102(2) of NEPA'' with ``the requirements of NEPA,'' because 
the requirements of NEPA extend to additional sections following the 
2023 NEPA amendments. Additionally, CEQ includes the proposed new 
second sentence, with revisions. In the final rule, this provision 
requires rather than recommends that information be high quality for 
consistency with Sec.  1506.6. CEQ does not include the proposed 
references to ``science-based'' and ``accessible'' to avoid potential 
confusion that this provision was establishing a separate obligation 
from Sec.  1506.6, which addresses methodology and scientific accuracy.
    Finally, CEQ proposed a new paragraph (c) to restore text from the 
1978 regulations, most of which the 2020 rule deleted, emphasizing the 
importance of NEPA reviews for informed decision making. Some 
commenters recommended CEQ further amend proposed paragraph (c) to 
state that agencies only have to ``protect'' or ``restore and 
protect,'' rather than ``enhance'' the environment for consistency with 
sections 101 and 102 of NEPA. 42 U.S.C. 4331, 4332.
    CEQ disagrees with the commenters' view of NEPA's purposes and 
scope. To the extent that a substantive difference exists between the 
terms in this context, CEQ notes that section 101(c) of NEPA recognizes 
``that each person has a responsibility to contribute to the 
preservation and enhancement of the environment.'' 42 U.S.C. 4331(c) 
(emphasis added); see also, e.g., Douglas Ctny. v. Babbitt, 48 F.3d 
1495, 1505 (9th Cir. 1995) (``The purpose of NEPA is to `provide a 
mechanism to enhance or improve the environment and prevent further 
irreparable damage.' '' (emphasis added) (quoting Pac. Legal Found. v. 
Andrus, 657 F.2d 829, 837 (6th Cir. 1981)). Another commenter 
recommended that CEQ qualify the second sentence of proposed paragraph 
(c) by appending, ``within the agency's Congressional authorizations.'' 
CEQ declines to make this change. In implementing any statute, agencies 
must act within the scope of their legal authority; adding a specific 
qualification to that effect here is therefore unnecessary and could be 
confusing. CEQ finalizes paragraph (c) as proposed.
2. Policy (Sec.  1500.2)
    The 2020 rule struck 40 CFR 1500.2 (2019), stating that it was 
duplicative of other sections, and integrated policy language into 40 
CFR 1500.1 (2020).\56\ CEQ proposed to restore Sec.  1500.2 because a 
robust articulation of NEPA's policy principles is fundamental to the 
NEPA process. CEQ also proposed to restore the policy section because 
it is helpful to agency practitioners and the public to have a 
consolidated listing of policy objectives regardless of whether other 
sections of the regulations address those objectives. CEQ proposed to 
restore with some updates the language of the 1978 regulations to Sec.  
1500.2.
---------------------------------------------------------------------------

    \56\ CEQ, 2020 Final Rule, supra note 39, at 43316-17.
---------------------------------------------------------------------------

    First, CEQ proposed to restore an introductory paragraph to require 
agencies ``to the fullest extent possible'' to comply with the policy 
set forth in paragraphs (a) through (f). One commenter asserted that 
the final rule should delete ``to the fullest extent possible'' because 
it improperly expands the regulation's authority. CEQ disagrees with 
the commenter's interpretation of the phrase, which does not expand, 
but rather qualifies, the scope of Sec.  1500.2 and conforms with the 
text in section 102 of NEPA, which directs agencies to comply with that 
section's requirements, including the requirement to prepare an EIS, 
``to the fullest extent possible.'' See 42 U.S.C. 4332.
    Second, CEQ proposed to restore in paragraph (a) the 1978 language 
directing agencies to interpret and administer policies, regulations, 
and U.S. laws consistent with the policies of NEPA and the CEQ 
regulations. Some commenters recommended the final rule revise 
paragraph (a) to replace ``the policies set forth in the Act and in 
these regulations,'' with ``with other applicable laws and regulations, 
in addition to NEPA.'' CEQ finalizes paragraph (a) as proposed and 
declines to make this change because it aligns with the language of 
section 102(1) of NEPA. See 42 U.S.C. 4332(1). The purpose of Sec.  
1500.2(a) is to place the CEQ regulations into their broader context by 
restating NEPA's policies. Doing so improves readability by avoiding 
the need for cross references to material outside the text of the 
regulations.
    Third, in paragraph (b), CEQ proposed to restore with clarifying 
edits the 1978 language directing agencies to implement procedures that 
facilitate a meaningful NEPA process, including one that is useful to 
decision makers and the public with environmental documents that are 
concise and clear, emphasize the important issues and alternatives, and 
are supported by evidence. CEQ did not receive comments specific to 
this proposed paragraph and finalizes paragraph (b) as proposed.
    Fourth, in paragraph (c), CEQ proposed to direct agencies to 
integrate NEPA with other planning and environmental review 
requirements to promote efficient, concurrent processes. One commenter 
requested the final rule revise proposed paragraph (c) to add 
qualifying language to require the integration be done at the earliest 
reasonable time, consistent with Sec.  1501.2(a), except where 
inconsistent with other statutory requirements or where inefficient. 
The commenter generally supported integrating the NEPA process with 
other processes when it is efficient, but asserted that sometimes it 
may be more efficient to have other processes run consecutively instead 
of concurrently. CEQ agrees that processes should run consecutively 
where it is more efficient to do so, and that agencies should not 
integrate processes when doing so would be inefficient. Therefore, in 
the final rule, CEQ adds proposed paragraph (c) but does not include 
``all'' before ``such procedures,'' and adds ``where doing so promotes 
efficiency'' at the end of the paragraph.
    Fifth, in paragraph (d) CEQ proposed to modernize language from the 
1978 regulations in 40 CFR 1500.2(d) (2019) to emphasize public 
engagement, including ``meaningful public

[[Page 35452]]

engagement with communities with environmental justice concerns, which 
often include communities of color, low-income communities, indigenous 
communities, and Tribal communities.''
    One commenter requested that CEQ clarify whether the phrase 
``affect the quality of the human environment'' in paragraph (d) refers 
to beneficial or adverse effects and whether it covers temporary 
effects in addition to permanent ones. CEQ declines to amend the 
language in question, which CEQ is restoring from the 1978 regulations. 
Because NEPA directs agencies to consider all of the reasonably 
foreseeable effects of a proposed action--including positive, negative, 
temporary, and permanent effects--this phrase is appropriately broad. 
While the final rule defines ``significant effects'' as limited to only 
adverse effects, see Sec.  1508.1(mm), paragraph (d) is broader because 
the NEPA regulations encourage and facilitate public engagement for 
actions that may not have significant effects, including actions that 
agencies analyze through an EA.
    Multiple commenters supported proposed Sec.  1500.2(d) and the 
emphasis on public engagement. Some commenters recommended the final 
rule expand the paragraph to clarify how agencies should facilitate 
public engagement and education. CEQ declines to expand this paragraph 
because the intent of Sec.  1500.2 is to place the regulations into 
their broader policy context. Instead, Sec.  1501.9 describes agencies' 
public engagement responsibilities in detail.
    Some commenters opposed proposed paragraph (d) and the emphasis on 
public engagement. One commenter expressed concern that the proposed 
rule does not include a similar increased emphasis on State-specific 
involvement, requested the final rule delineate between State 
involvement and public involvement, and explicitly emphasize the 
importance of State-specific engagement, much the same way CEQ has 
outlined for Tribal engagement.
    In the final rule, CEQ adds proposed paragraph (d) but omits the 
last clause of the proposal and declines to specifically address State-
specific involvement in this paragraph because this paragraph is about 
involving the public, rather than coordinating with other government 
entities such as States and Tribes. While public involvement and inter-
governmental coordination are both critically important components of 
the NEPA process, they implicate different considerations and are 
addressed by different portions of the NEPA regulations. CEQ does not 
include the proposed language describing what communities are often 
included as communities with environmental justice concerns because 
``environmental justice'' and ``communities with environmental justice 
concerns'' are defined terms in Sec.  1508.1(f) and (m) and the 
explanatory language is unnecessary in Sec.  1500.2. CEQ also revises 
the clause in the final rule to clarify the example by adding ``such as 
those'' after communities so that the example refers to communities in 
general and communities with environmental justice concerns more 
specifically, because the regulations encourage meaningful engagement 
with all communities that are potentially affected by an action. The 
reference to engagement with communities with environmental justice 
concerns is an example and not exhaustive. Further, CEQ views an 
emphasis on engagement with such communities to be important because 
agencies have not always meaningfully engaged with them, and such 
communities have been disproportionately and adversely affected by 
certain Federal activities, and such communities often face challenges 
in engaging with the Federal Government. In making this change to 
emphasize public engagement, CEQ notes that consultation with Tribal 
Nations on a nation-to-nation basis is distinct from the public 
engagement requirements of NEPA.\57\
---------------------------------------------------------------------------

    \57\ See E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249 (Nov. 9, 2000); Presidential 
Memorandum, Tribal Consultation and Strengthening Nation-to-Nation 
Relationships, 86 FR 7491 (Jan. 29, 2021).
---------------------------------------------------------------------------

    Sixth, in paragraph (e), CEQ proposed to restore language from the 
1978 regulations regarding use of the NEPA process to identify and 
assess the reasonable alternatives to proposed actions that avoid or 
minimize adverse effects. CEQ also proposed to add examples of such 
alternatives, including those that will reduce climate change-related 
effects or address health and environmental effects that 
disproportionately affect communities with environmental justice 
concerns.
    One commenter requested that the final rule further clarify 
paragraph (e) by adding examples of reasonable alternatives. CEQ 
declines to add examples to paragraph (e) because reasonable 
alternatives are not amenable to easy generalization or simple 
description as they depend on project-specific factors, such as purpose 
and need, and technical and economic feasibility. Therefore, examples 
of reasonable alternatives are ill-suited to regulatory text. Some 
commenters opposed the references to climate change and environmental 
justice in Sec.  1500.2(e), contending that the references indicate 
that CEQ's regulations direct or favor particular substantive outcomes, 
such as the disapproval of oil and gas projects, and will therefore 
prejudice agencies' analysis of environmental effects; that the NEPA 
statute does not explicitly address these subjects; or that it will be 
difficult or burdensome for agencies to account for climate change when 
conducting environmental reviews.
    CEQ adds paragraph (e) as proposed in the final rule. CEQ agrees 
that NEPA does not dictate a particular outcome, and disagrees that the 
references to climate change and environmental justice in Sec.  
1500.2(e) are contrary to this principle. Rather, Congress enacted and 
amended NEPA based on the understanding that agency decision makers 
will make better decisions if they are fully informed about each 
decision's reasonably foreseeable environmental effects. Paragraph (e) 
prompts agencies to give appropriate regard to environmental effects 
related to climate change and environmental justice.
    Further, the references to climate change and environmental justice 
in paragraph (e) reflect and advance NEPA's statutory objectives, text, 
and policy statements, which include analyzing a reasonable range of 
alternatives; avoiding environmental degradation; preserving historic, 
cultural, and natural resources; and ``attain[ing] the widest range of 
beneficial uses of the environment without degradation, risk to health 
or safety, or other undesirable and unintended consequences.'' 42 
U.S.C. 4331(b), 4332(2)(C)(iii). The references emphasize that decision 
makers should integrate those subjects into the analysis of the 
environmental effects of a proposed action and any reasonable 
alternatives, as appropriate. Additionally, these changes are 
consistent with the goal of providing ``safe, healthful, productive, 
and esthetically and culturally pleasing surroundings'' across the 
Nation, and the goal that all people can ``enjoy a healthful 
environment,'' 42 U.S.C. 4331(b), (c), and highlight the importance of 
considering such effects in environmental documents, consistent with 
NEPA's requirements and agency practice.\58\ The changes are also

[[Page 35453]]

consistent with E.O. 12898 and E.O. 14096.
---------------------------------------------------------------------------

    \58\ Consistent with section 102(2)(C) of NEPA, consideration of 
environmental justice and climate change-related effects has long 
been part of NEPA analysis. See, e.g., Ctr. for Biological Diversity 
v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 
2008) and CEQ, Environmental Justice Guidance, supra note 7.
---------------------------------------------------------------------------

    Finally, in paragraph (f), CEQ proposed to restore the direction 
from the 1978 regulations to use all practicable means, consistent with 
the policies of NEPA, to restore and enhance the environment and avoid 
or minimize any possible adverse effects of agency actions. These 
revisions to Sec.  1500.2(d), (e), and (f) reflect longstanding 
practice among Federal agencies and align with NEPA's statutory 
policies, including to avoid environmental degradation, preserve 
historic, cultural, and natural resources, and ``attain the widest 
range of beneficial uses of the environment without degradation, risk 
to health or safety, or other undesirable and unintended 
consequences.'' 42 U.S.C. 4331(b).
    Multiple commenters expressed support for the proposed changes to 
paragraphs (d), (e), and (f), asserting the changes appropriately 
emphasize agency obligations to facilitate public participation in the 
decision-making process, instead of merely keeping the public informed, 
and to act on information they obtain in that process. These commenters 
asserted the proposed changes properly describe the objectives of 
environmental reviews under NEPA as informed decision making, robust 
public engagement, and protection of the environment.
    One commenter requested the final rule revise paragraph (f) to add 
other laws and agency authorities after ``the requirements of the 
Act.'' CEQ finalizes paragraph (f) as proposed and declines to make 
this change because this paragraph aligns with section 101(b) of NEPA. 
42 U.S.C. 4331(b). The purpose of Sec. Sec.  1500.1 and 1500.2 is to 
place the regulations into their broader context by restating NEPA's 
policies within the regulations. Doing so improves readability by 
avoiding the need for cross references to material outside the text of 
the regulations. CEQ agrees that agencies should comply with other laws 
and with agency authorities, which are examples of ``other essential 
considerations of national policy.'' CEQ also notes that this text was 
in the 1978 regulation, in effect until 2020, and did not create 
confusion that the NEPA regulations prevented agencies from complying 
with other legal requirements.
    Commenters recommended that CEQ add various qualifiers to Sec.  
1500.2 asserting that agencies have limited authorities and resources 
and must comply with other applicable laws in addition to NEPA. CEQ 
declines to make these changes. The introductory paragraph of Sec.  
1500.2 provides that agencies must carry out the policies set forth in 
the section ``to the fullest extent possible,'' which renders the 
suggested amendments redundant. Moreover, Sec.  1501.3 directs agencies 
to consider, for a particular action, whether compliance with NEPA 
would clearly and fundamentally conflict with the requirements of 
another provision of Federal law when determining NEPA applicability to 
that action, which is consistent with the manner in which Congress 
addressed this issue in section 106 of NEPA. 42 U.S.C. 4336.
    Likewise, commenters suggested that CEQ clarify particular points 
of NEPA practice, such as defining ``all practicable means;'' 
explaining how agencies should facilitate public engagement and 
education; adding examples of reasonable alternatives; requiring 
environmental documents to describe the steps that the agency has taken 
to avoid or minimize adverse effects; providing standards against which 
to quantitatively assess agencies' implementation of the NEPA 
regulations; requiring only that agencies minimize the ``significant'' 
adverse effects of a proposed action; or directing agencies to make 
their planning efforts consistent with State and local plans to the 
maximum extent possible.
    CEQ declines to revise the regulations in response to these 
comments. The purpose of Sec. Sec.  1500.1 and 1500.2 is to place the 
regulations into their broader context by restating the purposes and 
policies of the Act and addressing a variety of aspects of NEPA 
practice would distract from that purpose. Other provisions in the 
regulations implement the provisions of NEPA that effectuate these 
purposes and policies, and set forth specific procedures that agencies 
must and should follow. Accordingly, it is not necessary or appropriate 
for Sec.  1500.2 to address these subjects in greater detail.
    Lastly, one commenter recommended that CEQ add a new paragraph to 
Sec.  1500.2 to require agencies to realize the Federal Government's 
trust responsibility to Tribal Nations by acting on and not merely 
considering Indigenous Knowledge. Another commenter made a related 
recommendation that Sec.  1500.1 explicitly recognize the Federal 
Government's trust responsibilities to Tribes.
    CEQ agrees that agencies should consider and include Indigenous 
Knowledge in Federal research, policies, and decision making, including 
as part of the environmental review process under NEPA. CEQ also 
recognizes that the Federal trust responsibility to Tribal Nations may 
shape both the procedures that agencies follow and the substantive 
outcomes of agencies' decision-making processes. CEQ does not, however, 
view it as properly within the scope of CEQ's authority to direct 
agencies to act on Indigenous Knowledge through the NEPA regulations, 
because the NEPA statute includes procedural, rather than substantive 
requirements, and the obligation to honor the trust responsibility, 
including the obligation to engage in Tribal consultation, does not 
arise from the NEPA statute.
3. NEPA Compliance (Sec.  1500.3)
    CEQ proposed to revise Sec.  1500.3 to restore some language from 
the 1978 regulations and remove some provisions added by the 2020 rule 
regarding exhaustion and remedies, which aimed to limit legal 
challenges and judicial remedies.\59\ The process established by the 
2020 rule provided that first, an agency must request in its notice of 
intent (NOI) comments on all relevant information, studies, and 
analyses on potential alternatives and effects. 40 CFR 1500.3(b)(1) 
(2020). Second, the agency must summarize all the information it 
receives in the draft EIS and specifically seek comment on it. 40 CFR 
1500.3(b)(2), 1502.17, 1503.1(a)(3) (2020). Third, decision makers must 
certify in the record of decision (ROD) that they considered all the 
alternatives, information, and analyses submitted by public commenters. 
40 CFR 1500.3(b)(4), 1505.2(b) (2020). And fourth, any comments not 
submitted within the comment period were considered forfeited as 
unexhausted. 40 CFR 1500.3(b)(3), 1505.2(b) (2020).
---------------------------------------------------------------------------

    \59\ CEQ, 2020 Final Rule, supra note 39, at 43317-18.
---------------------------------------------------------------------------

    First, CEQ proposed to revise paragraph (a) to remove the phrase 
``except where compliance would be inconsistent with other statutory 
requirements'' from the end of the first sentence because Sec.  1500.6 
addresses this issue. CEQ also proposed to remove the references to 
E.O. 13807, which E.O. 13990 revoked, as well as the reference to 
section 309 of the Clean Air Act because this provision is implemented 
by EPA.\60\
---------------------------------------------------------------------------

    \60\ See E.O. 13807, supra note 14; E.O. 13990, supra note 43.
---------------------------------------------------------------------------

    CEQ removes the clause ``except where compliance would be 
inconsistent with other statutory requirements'' in the final rule 
because the relationship between NEPA and agency statutory authority is 
addressed in Sec.  1500.6 and the circumstances in

[[Page 35454]]

which an agency does not need to prepare an environmental document due 
to a conflict with other statutes is addressed in Sec.  1501.3. 
Moreover, to the extent that this phrase could be read as identifying 
when an agency does not need to conduct an environmental review, the 
NEPA amendments address that in section 106(a)(3) using different 
language, specifically, that an agency does not need to prepare an 
environmental document where ``the preparation of such document would 
clearly and fundamentally conflict with the requirements of another 
provision of law.'' 42 U.S.C. 4336(a)(3). CEQ also removes the 
references to E.O. 13807 and section 309 of the Clean Air Act 
consistent with the proposal.
    Second, CEQ proposed to delete paragraphs (b) and (b)(1) through 
(b)(4) of 40 CFR 1500.3 (2020) addressing exhaustion. CEQ proposed to 
remove these provisions because they establish an inappropriately 
stringent exhaustion requirement for public commenters and agencies. 
CEQ also proposed to delete this paragraph because it is unsettled 
whether CEQ has the authority under NEPA to set out an exhaustion 
requirement that bars parties from bringing claims on the grounds that 
an agency's compliance with NEPA violated the APA, pursuant to 5 U.S.C. 
702. As explained in the proposed rule, while the 2020 rule correctly 
identifies instances in which courts have ruled that parties may not 
raise legal claims based on issues that they themselves did not raise 
during the comment period,\61\ other courts have sometimes ruled that a 
plaintiff can bring claims where another party raised an issue in 
comments or where the agency should have identified an issue on its 
own. Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of Interior, 
929 F. Supp. 2d 1039, 1045-46 (E.D. Cal. 2013); Wyo. Lodging and Rest. 
Ass'n v. U.S. Dep't of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo. 
2005); see Pub. Citizen, 541 U.S. at 765 (noting that ``[T]he agency 
bears the primary responsibility to ensure that it complies with NEPA . 
. . and an EA's or an EIS' flaws might be so obvious that there is no 
need for a commentator to point them out specifically in order to 
preserve its ability to challenge a proposed action''). Because the 
fundamental question raised by these cases is the availability of a 
cause of action under the APA and not a question of interpreting NEPA, 
CEQ proposed to delete the exhaustion provision because CEQ considers 
interpreting and applying the APA more appropriate for the courts.
---------------------------------------------------------------------------

    \61\ CEQ, 2020 Final Rule, supra note 39, at 43317-18 (citing 
Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Karst 
Env't. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 F. App'x 421, 
426-27 (6th Cir. 2014); Friends of the Norbeck v. U.S. Forest Serv., 
661 F.3d 969, 974 (8th Cir. 2011); Exxon Mobil Corp. v. U.S. EPA, 
217 F.3d 1246, 1249 (9th Cir. 2000); and Nat'l Ass'n of Mfrs. v. 
U.S. Dep't of the Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998)).
---------------------------------------------------------------------------

    CEQ also proposed to remove the exhaustion requirement because it 
is at odds with longstanding agency practice. While courts have ruled 
that agencies are not required to consider comments that are not 
received until after comment periods end, see, e.g., Pub. Citizen, 541 
U.S. at 764-65 (finding that where a party does not raise an objection 
in their comments on an EA, the party forfeits any objection to the EA 
on that ground), agencies have discretion to do so and have sometimes 
chosen to exercise this discretion, particularly where a comment 
provides helpful information to inform the agency's decision. As 
explained in the proposed rule, the exhaustion requirement could 
encourage agencies to disregard important information presented to the 
agency shortly after a comment period closes, and such a formalistic 
approach would not advance NEPA's goal of informed decision making.
    Many commenters supported CEQ's proposal to remove the exhaustion 
provisions asserting that the provisions were unlawful, created 
additional compliance burdens, did not improve the efficiency of the 
NEPA process, and did not reduce litigation risk; and that removal is 
consistent with the NEPA statute, which does not provide for an 
exhaustion requirement. One commenter that supported removal, asserted 
that because NEPA does not impose a statutory exhaustion requirement, 
the determination of whether a particular plaintiff may go forward with 
a particular claim is a matter for the judiciary. CEQ agrees with this 
commenter's view. Where appropriate in light of the statutes they 
administer, individual agencies may address exhaustion through their 
agency-specific rules of procedure, and courts will continue to 
consider exhaustion as a normal part of judicial review.
    Commenters that opposed removing the exhaustion requirements argued 
they are necessary to curb ``frivolous litigation claims;'' assist 
agencies and the public by providing helpful information on filing 
timely comments and incentivizing them to raise concerns during the 
NEPA process; and communicate the need for prompt and active 
participation in the NEPA review process. While CEQ agrees with these 
commenters' assertions that the regulations should promote early 
engagement and public participation and the timely identification of 
concerns during the NEPA process, CEQ disagrees that the exhaustion 
provisions are the mechanism to achieve these goals. CEQ considers 
other provisions in the regulations, including Sec. Sec.  1501.9 and 
1502.4, and part 1503, to be the better means of achieving these goals 
without incurring the risk of including provisions in the regulations 
that are legally uncertain.
    For these reasons, CEQ removes the exhaustion provisions from the 
regulations and strikes paragraphs (b) and (b)(1) through (b)(4) of 40 
CFR 1500.3 (2020) consistent with the proposal. Removal of these 
exhaustion provisions does not relieve parties interested in 
participating in, commenting on, or ultimately challenging a NEPA 
analysis of the obligation to ``structure their participation so that 
it is meaningful.'' Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. 
Council, Inc., 435 U.S. 519, 553 (1978). As CEQ's regulations have made 
clear since 1978, parties must provide comments that are as specific as 
possible to enable agencies to consider and address information during 
the decision-making processes. See 40 CFR 1503.3(a) (2019).
    Further, nothing in this revision limits the positions the Federal 
Government may take regarding whether, based on the facts of a 
particular case, a particular issue has been forfeited by a party's 
failure to raise it before the agency, and removing this provision does 
not suggest that a party should not be held to have forfeited an issue 
by failing to raise it. By deleting the exhaustion requirements, CEQ 
does not take the position that plaintiffs may raise new and previously 
unraised issues in litigation. Rather, CEQ considers this to be a 
question of general administrative law best addressed by the courts 
based on the facts of a particular case.
    Third, CEQ proposed to redesignate paragraph (c), ``Review of NEPA 
compliance,'' of 40 CFR 1500.3 (2020) as paragraph (b) and add a 
clause, ``except with respect to claims brought by project sponsors 
related to deadlines under section 107(g)(3) of NEPA'' to the end of 
the first sentence stating that judicial review of NEPA compliance does 
not occur before an agency issues a ROD or takes a final agency action. 
CEQ did not receive specific comments on this proposal and adds to 
redesignated paragraph (b) the exception clause to acknowledge the 
ability of project sponsors to petition a

[[Page 35455]]

court when an agency allegedly fails to meet a deadline consistent with 
section 107(g)(3) of NEPA. 42 U.S.C. 4336(a)(g)(3).
    Fourth, CEQ proposed to move the last sentence of paragraph (d) of 
40 CFR 1500.3 (2020) regarding harmless error for minor, non-
substantive errors, a concept that has been in place since the 1978 
regulations, to redesignated paragraph (b). CEQ also proposed to delete 
the second sentence of paragraph (c) of 40 CFR 1500.3 (2020) stating 
that noncompliance with NEPA and the CEQ regulations should be resolved 
as expeditiously as possible. While CEQ agrees with expeditious 
resolution of issues, CEQ proposed to delete this sentence reasoning 
that CEQ cannot compel members of the public or courts to resolve NEPA 
disputes expeditiously.
    One commenter opposed the proposed deletion of the second sentence 
of paragraph (c) of 40 CFR 1500.3 (2020) and disagreed with CEQ's 
rationale, asserting that it is proper for CEQ to express its interest 
in agencies resolving NEPA compliance issues as soon as practicable. 
The commenter further argued that doing so is in the interest of 
Federal agencies, project proponents, and the public, and that 
unresolved NEPA disputes can lead to costly litigation that prolongs 
the NEPA process, wastes taxpayer and project proponent resources, and 
deprives communities of infrastructure improvements.
    CEQ agrees that efficiency is an important goal, and that resolving 
claims of NEPA noncompliance can result in costly and time-consuming 
litigation. Upon further consideration, CEQ retains the second sentence 
of paragraph (c) of 40 CFR 1500.3(2020) in the final rule as the third 
sentence of Sec.  1500.3(b), but revises the text from ``as 
expeditiously as possible'' to ``as expeditiously as appropriate.'' 
While it is true that CEQ cannot compel members of the public or courts 
to resolve disputes expeditiously, as noted in CEQ's justification for 
proposing to delete this provision, CEQ considers this sentence to 
appropriately express CEQ's intention, rather than purporting to 
inappropriately bind those parties to litigation or dictate what 
timeline is appropriate for any particular case. Further, CEQ notes 
that the regulations promote public engagement, appropriate analysis, 
and informed decision making to facilitate NEPA compliance and avoid 
such disputes from the outset. CEQ moves the last sentence of 40 CFR 
1500.3(d) (2020) to Sec.  1500.3(b) as proposed.
    Fifth, CEQ proposed to strike the last sentence of paragraph (c) of 
40 CFR 1500.3 (2020) allowing agencies to include bonding and other 
security requirements in their procedures consistent with their organic 
statutes and as part of implementing the exhaustion requirements 
because this relates to litigation over an agency action and not the 
NEPA process. CEQ explained in the proposed rule that it is unsettled 
whether NEPA provides agencies with authority to promulgate procedures 
that require plaintiffs to post bonds in litigation brought under the 
APA, and that CEQ does not consider it appropriate to address this 
issue in the NEPA implementing procedures.
    Multiple commenters urged CEQ not to remove this sentence or 
encouraged CEQ to revise the regulations to require parties to post 
such a bond when petitioning a court to enjoin a NEPA decision during 
the pendency of litigation. Conversely, many commenters supported the 
proposed elimination of the bonding provision, which the commenters 
said discourages public engagement, appropriate analysis, and informed 
decision making and inequitably burdens disadvantaged communities.
    CEQ removes the bonding provision in the final rule by striking the 
last sentence of 40 CFR 1500.3(c) (2020). NEPA does not authorize CEQ 
to require posting of bonds or other financial securities prior to a 
party challenging an agency decision. Agencies may have various 
authorities independent of NEPA to require bonds or other securities as 
a condition of filing an administrative appeal or obtaining injunctive 
relief; this rule does not modify those authorities. CEQ continues to 
consider it unsettled whether NEPA provides agencies with authority to 
promulgate procedures that require plaintiffs to post bonds in 
litigation brought under the APA, commenters did not identify any 
specific statutory authorities, and even if such authority exists, CEQ 
does not view such a requirement as appropriate for inclusion in the 
NEPA regulations. Agency authority to require bonds or other securities 
as a condition of an administrative appeal or injunctive relief may 
exist independent of NEPA, and to the extent that such authority does 
exist, it likely varies by agency. The rule does not modify any 
existing authority.
    CEQ proposed to strike paragraph (d) of 40 CFR 1500.3 (2020) 
regarding remedies, with the exception of the last sentence, which CEQ 
proposed to move to proposed paragraph (c) as discussed earlier in this 
section. CEQ proposed to remove this provision because it is 
questionable whether CEQ has the authority to direct courts about what 
remedies are available in litigation brought under the APA, and in any 
case, CEQ considers the 2020 rule's addition of this paragraph to be 
inappropriate.
    CEQ strikes 40 CFR 1500.3(d) (2020) in the final rule. CEQ 
considers courts to be in the best position to determine the 
appropriate remedies when a plaintiff successfully challenges an 
agency's NEPA compliance. See, e.g., N. Cheyenne Tribe v. Norton, 503 
F.3d 836, 842 (9th Cir. 2007) (rejecting successful NEPA plaintiffs' 
contention that CEQ regulations mandated a particular remedy and 
holding that ``a NEPA violation is subject to traditional standards in 
equity for injunctive relief'').
    Finally, CEQ proposed to redesignate paragraph (e) of 40 CFR 1500.3 
(2020) on Severability, as proposed paragraph (c), without change. CEQ 
makes this change in the final rule because CEQ intends these 
regulations to be severable. This final rule amends existing 
regulations, and the NEPA regulations can be functionally implemented 
if each revision in this final rule occurred on its own or in 
combination with any other subset of revisions. As a result, if a court 
were to invalidate any particular provision of this final rule, 
allowing the remainder of the rule to remain in effect would still 
result in a functional NEPA review process. This approach to 
severability is the same as the approach that CEQ took when it 
promulgated the 2020 regulations, because those amendments similarly 
could be layered onto the 1978 regulations individually without 
disrupting the overarching NEPA review process.
4. Concise and Informative Environmental Documents (Sec.  1500.4)
    CEQ proposed to revise Sec.  1500.4, which briefly describes and 
cross references certain other provisions of the CEQ regulations, to 
emphasize the important values served by concise and informative NEPA 
documents beyond merely reducing paperwork, such as promoting informed 
and efficient decision making and facilitating meaningful public 
participation and transparency. CEQ proposed these changes to encourage 
the preparation of documents that can be easily read and understood by 
decision makers and the public, which in turn promotes informed and 
efficient decision making and public participation.
    First, CEQ proposed to retitle Sec.  1500.4 from ``Reducing 
paperwork'' to ``Concise and informative environmental documents'' and 
revise the introductory text to clarify that the

[[Page 35456]]

listed paragraphs provide examples of the regulatory mechanisms that 
agencies can use to prepare concise and informative environmental 
documents. Multiple commenters supported the proposed changes in Sec.  
1500.4, opining the changes properly direct agencies to streamline the 
process of preparing environmental documents and make those documents 
analytical, concise, and informative. One commenter recommended that 
CEQ add ``for example'' and ``as appropriate'' to the introductory 
paragraph.
    CEQ revises the title and introductory text of Sec.  1500.4 in the 
final rule as proposed. Concise and informational documents make the 
NEPA process more accessible and transparent to the public, allowing 
the public an opportunity to contribute to the NEPA process. The 
changes in Sec.  1500.4 align the regulations with the intent of NEPA 
to allow the public to provide input and enhance transparency, while 
providing agencies flexibility on how to achieve concise and 
informative documents. CEQ declines to add ``for example'' and ``as 
appropriate'' to the introductory paragraph. Those qualifiers are 
unnecessary because CEQ proposed and is adding ``e.g.,'' throughout 
Sec.  1500.4, where appropriate, to clarify that the cross-references 
are non-exclusive examples of strategies that agencies must use in 
preparing analytical, concise, and informative environmental documents.
    CEQ proposed to strike paragraphs (a) and (b) of 40 CFR 1500.4 
(2020) because they are redundant with Sec.  1500.5(a) and (b) and are 
more appropriately addressed in that section, which addresses an 
efficient process. CEQ also proposed to strike paragraph (d) of 40 CFR 
1500.4 (2020) because this provision would be addressed in the revised 
introductory text.
    A few commenters objected to the deletion of 40 CFR 1500.4(a) and 
(b) (2020), which pertain to using CEs and FONSIs, respectively. The 
commenters asserted that the use of CEs and FONSIs is critical to 
ensuring ``analytical, concise, and informative'' environmental 
documents, and that the inclusion of such language encourages concision 
in the evaluation process. While recognizing the paragraphs are 
redundant with Sec.  1500.5(a) and (b), they asserted that Sec.  
1500.5(a) and (b) address improving efficiency in the process, while 
Sec.  1500.4 addresses concise environmental documents. The commenters 
further asserted that the two sections are separate in substance and in 
form, and each should therefore include independent language addressing 
any inefficiencies.
    CEQ strikes paragraphs (a), (b), and (d) of 40 CFR 1500.4 (2020) 
consistent with the proposal. While CEQ agrees that, where appropriate, 
applying CEs and preparing EAs and FONSIs typically result in shorter 
evaluation timelines, this section addresses the preparation of 
documents, including CE determinations, EAs, and FONSIs, rather than 
addressing the use of different types of environmental documents.
    CEQ proposed to redesignate paragraphs (c) and (e) through (q) of 
40 CFR 1500.4 (2020) as Sec.  1500.4 (a) and (b) through (n), 
respectively. CEQ proposed to add ``e.g.,'' to the cross references 
listed in proposed paragraphs (b), (c), and (e) to clarify that they 
are non-exclusive examples of how agencies can briefly discuss 
unimportant issues, write in plain language, and reduce emphasis on 
background material. CEQ also proposed to update the regulatory section 
cross references for consistency with the proposed changes in the rule. 
CEQ makes these changes in the final rule as proposed.
    In proposed paragraphs (c) and (e), CEQ proposed to expand the 
reference from EISs to all environmental documents, as the concepts 
discussed are more broadly applicable. Additionally, in paragraph (e), 
CEQ proposed to insert ``most'' before ``useful'' to clarify that the 
environmental documents should not contain portions that are useless.
    In proposed paragraph (f), CEQ proposed to replace ``significant'' 
with ``important'' and insert ``unimportant'' to modify ``issues'' 
consistent with the proposal to only use ``significant'' to modify 
``effects.'' CEQ also proposed to clarify in paragraph (f) that scoping 
may apply to EAs. Additionally, CEQ proposed to expand paragraph (h), 
regarding programmatic review and tiering, to include EAs to align with 
the proposed changes to Sec.  1501.11. CEQ makes these changes to 
paragraphs (c), (e), (f), and (h) in the final rule as proposed.
    While CEQ did not propose any changes to paragraph (l) regarding 
use of errata sheets, in the final rule, CEQ moves the clause ``when 
changes are minor'' from the end to the beginning of the paragraph to 
make the language clearer that agencies use errata sheets only when 
changes between the draft EIS and final EIS are minor. Finally, in 
paragraph (m), CEQ proposed to insert ``Federal'' before ``agency'' 
consistent with Sec.  1506.3, which allows adoption of NEPA documents 
prepared by other Federal agencies.
    One commenter objected to paragraph (m), contending that directing 
agencies to eliminate duplication by preparing environmental documents 
jointly with relevant State, Tribal, and local agencies would threaten 
the autonomy of Tribes by obligating them to coordinate with Federal 
agencies in preparing environmental documents. CEQ disagrees with this 
commenter's interpretation of paragraph (m). Paragraph (m) refers 
agencies to Sec.  1506.2, which makes clear that agencies should only 
prepare joint environmental documents by mutual consent. CEQ makes the 
changes as proposed in the final rule.
    Commenters recommended including additional strategies in Sec.  
1500.4, including minimizing unnecessary repetition in describing and 
assessing alternatives, limiting discussion of effects to those that 
are reasonably foreseeable, and resolving disagreements in the review 
process expeditiously. CEQ declines to add additional paragraphs. 
Section 1500.4 lists regulatory provisions that agencies must use in 
preparing concise and informative environmental documents; these 
provisions already direct agencies to minimize unnecessary repetition, 
evaluate the reasonably foreseeable effects of proposed actions, and 
resolve disagreements expeditiously.
5. Efficient Process (Sec.  1500.5)
    CEQ proposed minor changes to Sec.  1500.5 to provide clarity and 
flexibility regarding mechanisms by which agencies can apply the CEQ 
regulations to improve efficiency in the environmental review process. 
CEQ proposed these changes to acknowledge that unanticipated events and 
circumstances beyond agency control may delay the environmental review 
process, and to recognize that, while these approaches may improve 
efficiency for many NEPA reviews, they could be inefficient for others. 
To that end, CEQ proposed to retitle Sec.  1500.5 from ``Reducing 
delay'' to ``Efficient process'' and revise the introductory text to 
replace ``reduce delay'' with ``improve efficiency of the NEPA 
processes'' consistent with the new title.
    Some commenters recommended against these changes asserting that 
they give the impression that it is unimportant for agencies to reduce 
delays in the permitting process. CEQ revises the title and 
introductory text as proposed. The purpose of the changes is not to 
discount the importance of reducing delays in the environmental review 
process, but to emphasize that agencies should make their review 
processes broadly efficient and not merely fast--recognizing that 
efficiency also requires effectiveness and quality of

[[Page 35457]]

work. CEQ agrees that reducing delays is important but considers the 
text to give the wrong impression that there are always delays in the 
NEPA process.
    CEQ proposed to add EAs to paragraph (a) to make the provision 
consistent with the definition of ``categorical exclusion;'' phrase 
paragraph (d) in active voice; change ``real issues'' to ``important 
issues that required detailed analysis'' in paragraph (f) for 
consistency with Sec.  1502.4; change ``time limits'' to ``deadlines'' 
in paragraph (g) for consistency with Sec.  1501.10; and expand the 
scope of paragraph (h) from EISs to environmental documents to make 
clear that, regardless of the level of NEPA review, agencies should 
prepare environmental documents early in the process. CEQ proposed 
these revisions to recognize the importance of timely information for 
decision making and encourage agencies to implement the 12 listed 
mechanisms to achieve timely and efficient NEPA processes. CEQ did not 
receive any comments specific to these proposed changes and makes them 
in the final rule. Additionally, CEQ revises Sec.  1500.5(a) to change 
``using'' to ``establishing'' and adds a cross reference to Sec.  
1507.3(c)(8) because the language in this provision is addressing the 
development of CEs, not their application to proposed actions.
    One commenter recommended the final rule revise paragraph (d)--
requiring interagency cooperation during preparation of an EA or EIS 
rather than waiting to submit comments on a completed document--to 
require the lead agency to involve other relevant agencies in the 
determination of whether to review a proposed action by applying a CE, 
preparing an EA, or preparing an EIS.
    CEQ revises paragraph (d) to incorporate some of the text proposed 
by the commenter. Specifically, CEQ adds ``including with affected 
Federal, State, Tribal, and local agencies'' to highlight the 
efficiency benefits of interagency cooperation with those non-Federal 
entities, and also adds the words ``request or'' before the ``submit 
comments'' to highlight the importance of both the lead agency and 
other agencies to interagency cooperation.
6. Agency Authority (Sec.  1500.6)
    CEQ proposed revisions to Sec.  1500.6 to clarify that agencies 
have an independent responsibility to ensure compliance with NEPA and a 
duty to harmonize NEPA with their other statutory requirements and 
authorities to the maximum extent possible. CEQ proposed to revise the 
second and third sentences in Sec.  1500.6 and strike the fourth 
sentence.
    While CEQ did not propose changes to the first sentence, which 
requires an agency to view its policies and missions in the light of 
NEPA's environmental objectives to the extent consistent with its 
existing authority, one commenter recommended that CEQ revise the 
sentence to restore phrasing from the 1978 regulations. In particular, 
the commenter recommended the final rule delete the last clause, ``to 
the extent consistent with its existing authority'' because it is 
``internally inconsistent and contrary to the plain language of NEPA 
Section 105.'' 42 U.S.C. 4335. Another commenter recommended the final 
rule delete the first sentence and disagreed with the description in 
the proposed rule that ``an irreconcilable conflict exists only if the 
agency's authorizing statute grants it no discretion to comply with 
NEPA while also satisfying the statutory mandate,'' asserting that if a 
statute delegates authority, it does so expressly and there is no 
presumption that an agency's authorizing statute delegates the agency 
authority to comply with NEPA.
    CEQ declines to revise the first sentence. This provision generally 
directs agencies to interpret the provisions of NEPA, including section 
2's statement of purpose, section 101's statement of policy, and 
sections 102 through 111's procedural provisions as a supplement to 
their existing authorities, and agencies can only do so to the extent 
consistent with those authorities. See 42 U.S.C. 4321 et seq. This 
provision does not address the more specific issue of when an agency is 
excused from completing an environmental document because of contrary 
statutory authority. That issue is addressed in Sec.  1501.3(a)(2), 
which incorporates section 106(a) of NEPA's directive that agencies are 
not required to prepare an environmental document where ``the 
preparation of such document would clearly and fundamentally conflict 
with the requirements of another provision of law.'' 42 U.S.C. 
4336(a)(3). NEPA applies to all Federal agencies and includes a 
specific statutory directive that ``the policies, regulations, and 
public laws of the United States shall be interpreted and administered 
in accordance with the policies set forth in [NEPA].'' 42 U.S.C. 
4332(1). While there may be situations in which compliance with another 
Federal law precludes an agency from complying with NEPA, agencies have 
an obligation to harmonize NEPA with their other statutes where 
possible to do so.
    CEQ proposed to revise the second sentence of Sec.  1500.6 to 
remove the qualification added in the 2020 rule that agencies must 
ensure full compliance with the Act ``as interpreted by'' the CEQ 
regulations so the provision would instead state that agencies must 
review and revise their procedures to ensure compliance with NEPA and 
the CEQ regulations. CEQ proposed this change because the phrase ``as 
interpreted by'' could be read to indicate that agencies have no 
freestanding requirement to comply with NEPA itself, which would be 
untrue. CEQ also considered the change necessary for consistency with 
Sec.  1507.3(b), which CEQ revised in its Phase 1 rulemaking to make 
clear that, while agency procedures must be consistent with the CEQ 
regulations, agencies have discretion and flexibility to develop 
procedures beyond the CEQ regulatory requirements, enabling agencies to 
address their specific programs, statutory mandates, and the contexts 
in which they operate. CEQ proposed to make conforming edits in 
Sec. Sec.  1502.2(d) and 1502.9(b) to remove this phrase.
    Several commenters expressed support for CEQ's proposal to restore 
language emphasizing each Federal agency's independent obligation and 
ability to implement NEPA. The commenters asserted that removing this 
language would make it clear that agencies have an obligation to comply 
with NEPA by following CEQ's regulations and also reviewing and 
revising, as necessary, their own agency policies, procedures, and 
activities. The commenter further asserted this independent obligation 
to comply with NEPA, combined with revisions to Sec.  1507.3 in the 
Phase 1 rule, provides Federal agencies with flexibility to craft 
regulations tailored to their agency's work, even if they go beyond the 
requirements of the CEQ NEPA regulations.
    Another commenter expressed support for this proposed change and 
agreed with CEQ's statement that the current text could be read to 
mistakenly indicate that agencies have no freestanding requirement to 
comply with NEPA. The commenter suggested that the final rule add to 
the beginning of the second sentence, to state that ``[a]gencies shall 
comply with the purposes and provisions of the Act and with the 
requirements under this Part, to the fullest extent possible.'' The 
commenter asserted that regardless of what an agency's policies, 
procedures, and regulations say, it is critical that the agency comply 
with both NEPA and the CEQ regulations, unless an agency activity, 
decision, or action is exempted

[[Page 35458]]

by law or compliance with NEPA is impossible.
    In the final rule, CEQ revises the second sentence of Sec.  1500.6 
as proposed to replace ``as interpreted by'' with ``and'' and makes 
conforming changes to Sec. Sec.  1502.2(d) and 1502.9(b). CEQ declines 
to add the clause suggested by the commenter because compliance with 
NEPA and the regulations is already addressed in the last sentence of 
this section as well as Sec. Sec.  1507.1 and 1507.2.
    In the third sentence, CEQ proposed to remove the cross-reference 
to Sec.  1501.1 for consistency with the proposed revisions to Sec.  
1501.1 and add the text, consistent with language from the 1978 
regulations, explaining that the phrase ``to the fullest extent 
possible'' means that each agency must comply with section 102 of NEPA 
unless an agency activity, decision, or action is exempted by law or 
compliance with NEPA is impossible. 42 U.S.C. 4332.
    A couple of commenters suggested revisions to the last sentence of 
Sec.  1500.6. They asserted that the proposed revisions would create 
confusion by creating a distinction between complying with section 102 
of NEPA and complying with all of NEPA, and that this was incorrect 
given the recent NEPA amendments and the proposed implementation of 
those amendments in these regulations. 42 U.S.C. 4321 et seq. The 
commenters recommended the final rule replace ``that section unless'' 
with ``the Act and the regulations of this subchapter.''
    CEQ agrees with the commenter that the statement in section 102 is 
not limited to that section and replaces the phrase ``that section'' 
with ``the Act'' for consistency with the statute. Section 102(2) 
authorizes and directs that, to the fullest extent possible the 
policies, regulations, and public laws of the United States shall be 
interpreted and administered in accordance with the policies set forth 
in NEPA. 42 U.S.C. 4332(2). CEQ does not include a reference to the 
regulations as these are not specifically identified in section 102, 
and Sec.  1507.1 addresses the requirement to comply with the NEPA 
regulations.
    The commenters also recommended the final rule replace ``compliance 
with NEPA is impossible'' with ``compliance is impracticable.'' The 
commenters recommended this change because section 101 refers to the 
Federal Government taking all ``practicable means'' to advance NEPA's 
goals, implicitly sparing the need to pursue ``impracticable'' steps. 
42 U.S.C. 4331.
    CEQ declines to make this change and revises the last sentence as 
proposed to strike ``consistent with Sec.  1501.1 of this chapter'' and 
replace it with ``unless an agency activity, decision, or action is 
exempted from NEPA by law or compliance with NEPA is impossible.'' 
Compliance with NEPA is only impossible within the meaning of this 
subsection when the conflict between another statute and the 
requirements of NEPA are clear, unavoidable, and irreconcilable. Absent 
exemption by Congress or a court, an irreconcilable conflict exists if 
the agency's authorizing statute does not provide the agency any 
discretion to comply with NEPA while also satisfying its statutory 
mandate. While NEPA requires agencies ``to use all practicable means'' 
to achieve the Act's environmental goals, see 42 U.S.C. 4331, the Act 
does not limit its procedural requirements in the same fashion. 
Instead, it directs agencies to fulfill the obligations in section 102 
of NEPA, which establishes NEPA's procedural obligations, ``to the 
fullest extent possible,'' 42 U.S.C. 4332, which the Supreme Court has 
interpreted to require compliance except for ``where a clear and 
unavoidable conflict in statutory authority exists.'' See Flint Ridge 
Dev. Co, 426 U.S. at 788. Therefore, revising proposed paragraph (a)(3) 
to replace ``impossible'' with ``impracticable'' would be inconsistent 
with the statute and deviate from the established legal standard 
implementing it.
    Finally, CEQ proposed to strike the last sentence of 40 CFR 1500.6 
(2020) stating that the CEQ regulations do not limit an agency's other 
authorities or legal responsibilities. In the 2020 rule, CEQ stated 
that it added this sentence to acknowledge the possibility of different 
statutory authorities with different requirements and for consistency 
with E.O. 11514, as amended by section 2(g) of E.O. 11991.\62\ CEQ 
reconsidered its position and proposed to delete the sentence as 
superfluous and unnecessarily vague. CEQ proposed that the revised last 
sentence of Sec.  1500.6--agencies must comply with NEPA in carrying 
out an activity, decision, or action unless exempted by law (including 
where courts have held that a statute is functionally equivalent) or 
compliance with NEPA is impossible--accurately reflects the directive 
that Federal agencies comply with the CEQ regulations ``except where 
such compliance would be inconsistent with statutory requirements.'' 
\63\ CEQ removes this sentence from 40 CFR 1500.6 (2020) in the final 
rule.
---------------------------------------------------------------------------

    \62\ E.O. 11514, supra note 26; E.O 11991, supra note 29.
    \63\ CEQ, 2020 Final Rule, supra note 39, at 43319.
---------------------------------------------------------------------------

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

    CEQ proposed substantive revisions to all sections in part 1501 
except Sec.  1501.2, ``Apply NEPA early in the process,'' to which CEQ 
proposed minor edits for readability that are non-substantive. CEQ 
received a few comments on Sec.  1501.2 requesting additional revisions 
but declines to make additional changes in response to the comments, 
which are discussed in the Phase 2 Response to Comments.
1. Purpose (Sec.  1501.1)
    CEQ proposed to revise Sec.  1501.1 to address the purpose and 
goals of part 1501, consistent with the approach in the 1978 
regulations, and move the text in paragraph (a) of 40 CFR 1501.1 (2020) 
regarding NEPA thresholds to Sec.  1501.3(a). CEQ discusses the 
revisions to that paragraph in section II.C.2 of this rule. Multiple 
commenters expressed general support for the overall changes to Sec.  
1501.1.
    First, consistent with the approach in the 1978 regulations, CEQ 
proposed to retitle Sec.  1501.1 to ``Purpose,'' and add an 
introductory paragraph to indicate that this section would address the 
purposes of part 1501. CEQ did not receive any specific comments on 
these proposed changes and makes them in the final rule consistent with 
the proposal.
    Second, in paragraph (a), CEQ proposed to highlight the importance 
of integrating NEPA early in agency planning processes by restoring 
some of the language from the 1978 regulations, while also including 
language that emphasizes that early integration of NEPA promotes an 
efficient process and can reduce delay. CEQ proposed these revisions 
for consistency with section 102(2)(C) of NEPA and the objective to 
build into agency decision making, beginning at the earliest point, an 
appropriate consideration of the environmental aspects of a proposed 
action. 42 U.S.C. 4332(2)(C). CEQ did not receive any specific comments 
on proposed paragraph (a) and includes it in the final rule as 
proposed.
    Third, CEQ proposed in paragraph (b) to emphasize early engagement 
in the environmental review process to elevate the importance of early 
coordination and engagement throughout the NEPA process to identify and 
address potential issues early in the decision-making process, thereby 
helping to reduce the overall time required to approve a project and 
improving outcomes. Multiple commenters expressed support

[[Page 35459]]

for proposed paragraph (b) and the emphasis on early engagement in the 
environmental review process. One commenter suggested additional 
language to clarify that engagement should occur both prior to and 
during preparation of environmental documents. CEQ agrees that public 
engagement should continue throughout the NEPA process. However, this 
section outlines the purposes of part 1501, and while Sec.  1501.1(b) 
emphasizes that engagement should start early in the NEPA process, the 
full breadth of appropriate engagement in the NEPA process is more 
appropriately discussed in Sec.  1501.9. Therefore, CEQ includes 
paragraph (b), which is consistent with other changes throughout the 
regulations emphasizing the importance of engagement, as proposed, in 
the final rule.
    Fourth, CEQ proposed to add a new paragraph (c) to restore text 
from the 1978 regulations regarding expeditious resolution of 
interagency disputes. One commenter suggested appending ``and in the 
best interest of the public'' to the end of paragraph (c) and expressed 
concern that the proposed language, particularly the reference to 
``fair,'' implies agencies have an interest of their own. The commenter 
recommended the regulations clarify that interagency disputes should be 
resolved in a manner that advances the public interest and not just the 
interests of the agencies.
    CEQ adds paragraph (c), as proposed, to the final rule. While CEQ 
considers expeditious resolution of interagency disputes to be in the 
best interest of the public, the purpose of part 1501 is to facilitate 
the resolution of such disputes in an efficient fashion that 
accommodates the perspectives, expertise, and relevant statutory 
authority of the agencies involved in the dispute.
    Fifth, CEQ proposed to add paragraph (d) to restore the direction 
to identify the scope of the proposed action and important 
environmental issues consistent with Sec.  1501.3, which can enhance 
efficiency. One commenter requested clarity on what ``important 
environmental issues'' means, while another commenter asserted that all 
issues that acutely and negatively impact the environment deserve full 
study. One commenter also requested the final rule add language to 
clarify that agencies should remove unimportant issues from study or 
analysis, not just deemphasize them.
    CEQ adds paragraph (d), as proposed, to the final rule. CEQ 
declines to make the commenter's recommended changes in paragraph (d). 
Agencies must consider all issues during the environmental review 
process, but the level of analysis should be commensurate with the 
importance of the effect, with some issues requiring less analysis. 
This approach is consistent with the approach of the 1978 regulations 
that agencies have decades of experience implementing, which indicated 
that agencies should ``concentrate on the issues that are truly 
significant to the action in question, rather than amassing needless 
detail.'' 40 CFR 1500.1(b) (2019).
    Sixth, CEQ proposed to add paragraph (e) to highlight the 
importance of schedules consistent with Sec.  1501.10, which includes 
provisions requiring agencies to develop a schedule for all 
environmental reviews and authorizations, as well as Sec. Sec.  1501.7 
and 1501.8, which promote interagency coordination including with 
respect to schedules. CEQ did not receive any specific comments on 
proposed paragraph (e) and includes it in the final rule as proposed.
    Seventh, as discussed further in section II.C.2, CEQ proposed to 
combine the threshold considerations provision with the process to 
determine the appropriate level of NEPA review in Sec.  1501.3 by 
moving paragraphs (a)(1), (a)(2), (a)(4), and (a)(5) of 40 CFR 1501.1 
(2020) to Sec.  1501.3(a)(1), (2), (4), and (4)(ii), respectively, and 
striking paragraphs (a)(3) and (a)(6).
    CEQ proposed to delete the factor listed in 40 CFR 1501.1(a)(3) 
(2020), inconsistency with Congressional intent expressed in another 
statute, because upon further consideration, CEQ considers this factor 
to have inadequately accounted for agencies' responsibility to 
harmonize NEPA with other statutes, as discussed further in section 
II.C.2. As discussed in section II.B.5, the regulations provide that an 
agency should determine if a statute or court decision exempts an 
action from NEPA or if compliance with NEPA and another statute would 
be impossible; if not, the agency must comply with NEPA. To the extent 
the factor suggested that agencies should seek to go beyond these two 
questions to determine Congress's intent regarding NEPA compliance in 
enacting another statute, the factor is incorrect.
    One commenter objected to CEQ's removal of the factor at 40 CFR 
1501.1(a)(3) (2020) directing agencies to consider ``[w]hether 
compliance with NEPA would be inconsistent with Congressional intent 
expressed in another statute.'' The commenter asserted the proposed 
rule does not provide sufficient guidance to Federal agencies to 
determine whether an action is consistent with Congressional intent. In 
the final rule, CEQ strikes 40 CFR 1501.1(a)(3) (2020) as proposed 
because CEQ considers this factor to have inadequately accounted for 
agencies' responsibility to harmonize NEPA with other statutes. Section 
1501.3(a)(2) of the final rule requires agencies to consider 
``[w]hether compliance with NEPA would clearly and fundamentally 
conflict with the requirements of another provision of Federal law.'' 
As discussed further in section II.C.2, Sec.  1501.3(a)(2) incorporates 
the language of section 106(a)(3) of NEPA, 42 U.S.C. 4336(a)(3), and 
aligns with the statutory mandate in section 102 of NEPA, 42 U.S.C. 
4332, that agencies comply with NEPA ``to the fullest extent 
possible.'' Therefore, CEQ is removing this factor because it provides 
an inadequately rigorous standard for exempting agency actions from 
NEPA and is redundant with Sec.  1501.3(a)(2).
    CEQ proposed to strike the factor in 40 CFR 1501.1(a)(6) (2020) 
regarding functional equivalence to restore the status quo as it 
existed in the longstanding 1978 regulations. The NPRM explained that 
certain Environmental Protection Agency (EPA) actions are explicitly 
exempted from NEPA's environmental review requirements, see, e.g., 15 
U.S.C. 793(c)(1) (exempting EPA actions under the Clean Air Act); 33 
U.S.C. 1371(c)(1) (exempting most EPA actions under the Clean Water 
Act), and courts have found EPA's procedures under certain other 
environmental statutes it administers and certain procedures under the 
Endangered Species Act (ESA) to be functionally equivalent to or 
otherwise exempt from NEPA. See, e.g., Env't Def. Fund, Inc. v. EPA, 
489 F.2d 1247, 1256-57 (D.C. Cir. 1973) (exempting agency actions under 
the Federal Insecticide, Fungicide, and Rodenticide Act); W. Neb. Res. 
Council v. U.S. Env't Prot. Agency, 943 F.2d 867, 871-72 (8th Cir. 
1991) (noting exemptions under the Safe Drinking Water Act); Douglas 
County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding that 
Endangered Species Act procedures for designating a critical habitat 
replace the NEPA requirements). Nevertheless, CEQ considered this 
language added to the 2020 rule to go beyond the scope of the NEPA 
statute and case law because the language could be construed to expand 
functional equivalence beyond the narrow contexts in which it has been 
recognized.
    Some commenters opposed the proposed removal of the factor on 
functional equivalence from 40 CFR 1501.1(a)(6) (2020) as well as in 
other provisions of the regulations, including the removal of 40 CFR 
1500.1(a), 1506.9,

[[Page 35460]]

1507.3(c)(5), and 1507.3(d)(6) (2020). One commenter asserted that 
removing it would extend duplicative activity among agencies. Other 
opponents underscored that courts have held on several occasions that 
statutes that include their own environmental review processes can make 
compliance with NEPA redundant. These commenters asserted that CEQ's 
removal of regulatory language recognizing those decisions will 
encourage duplication and inefficiency. One commenter asserted that 
language in the rulemaking that encourages agencies ``to establish 
mechanisms in their agency NEPA procedures to align processes and 
requirements from other environmental laws with the NEPA process'' 
would turn the functional equivalence doctrine on its head, by 
requiring a specific statute to give way to a general statute rather 
than vice versa.
    By contrast, supporters of these changes asserted that the language 
in question had no justification in law, and that Congress had 
considered incorporating language related to functional equivalence 
into NEPA as part of the development of the Fiscal Responsibility Act 
but had ultimately chosen not to do so.
    CEQ strikes the factor in 40 CFR 1501.1(a)(6) (2020) from the final 
rule. As several commenters acknowledged, courts decided some of the 
cases addressing functional equivalence before CEQ issued the 1978 
regulations, which encouraged agencies to combine environmental 
documents with ``any other agency document[s] to reduce duplication and 
paperwork,'' 40 CFR 1506.4 (2019),\64\ and to ``adapt[] [their] 
implementing procedures authorized by Sec.  1507.3 to the requirements 
of other applicable laws.'' 40 CFR 1507.1 (2019). CEQ acknowledges the 
continuing validity of the judicial decisions finding EPA's procedures 
under certain environmental statutes it administers and certain 
procedures under the ESA are functionally equivalent to NEPA. CEQ 
considers these circumstances to fall within the scope of the 
activities and decisions addressed in Sec.  1501.3(a)(1) as ``exempted 
from NEPA by law.'' CEQ considers it unhelpful to separately discuss 
functional equivalence in the regulations to avoid suggesting that 
other agencies and activities or decisions are also exempted from NEPA. 
CEQ disagrees with commenters who contended that the functional 
equivalence decisions give agencies license to create new NEPA 
exemptions.\65\ Rather, the appropriate approach is for agencies to 
align their NEPA procedures with their statutory requirements--an 
approach that does not require a more specific statute to give way to a 
more general one, as asserted by a commenter, but rather allows 
agencies to comply with both statutes at once.
---------------------------------------------------------------------------

    \64\ See CEQ, Phase 2 proposed rule, supra note 51, at 49956.
    \65\ See also CEQ, Phase 2 proposed rule, supra note 51, at 
49959 (``CEQ has concerns about . . . language added by the 2020 
rule [in 40 CFR 1507.3(c)(5)] to substitute other reviews as 
functionally equivalent for NEPA compliance, and therefore proposes 
to remove it.'').
---------------------------------------------------------------------------

    Eighth, CEQ proposed to remove the language in paragraph (b) of 40 
CFR 1501.1 (2020) allowing agencies to make threshold determinations 
individually or in their NEPA procedures because CEQ proposed to move 
the consideration of thresholds into Sec.  1501.3 to consolidate the 
steps agencies should take to determine whether NEPA applies and, if 
so, what level of NEPA review is appropriate. CEQ also proposed to 
strike this language because it is redundant to language in Sec.  
1507.3(d)(1), which provides that agency NEPA procedures may identify 
activities or decisions that are not subject to NEPA.
    Ninth, CEQ proposed to remove as unnecessary paragraph (b)(1) of 40 
CFR 1501.1 (2020) because agencies have discretion to consult with CEQ 
and have done so for decades on a wide variety of matters, including on 
determining NEPA applicability, without such specific language in the 
CEQ regulations.
    Finally, CEQ proposed to eliminate paragraph (b)(2) of 40 CFR 
1501.1 (2020) directing agencies to consult with another agency when 
they jointly administer a statute if they are making a threshold 
applicability determination. CEQ proposed to delete this paragraph 
because while CEQ agrees that consultation is a good practice in such 
circumstances, it does not consider such a requirement necessary for 
these regulations because consultation is best determined by the 
agencies involved.
    One commenter expressed appreciation for the consolidation of 
threshold considerations from paragraph (b) but asserted that the final 
rule should retain an acknowledgement that the threshold considerations 
are a non-exhaustive list and that agencies should identify 
considerations on a case-by-case basis. CEQ considers the language in 
Sec. Sec.  1501.3(a) and 1507.3(d)(1) to address the commenter's 
concern and removes paragraphs (b), (b)(1), and (b)(2) of 40 CFR 1501.1 
(2020) in the final rule.
2. Determine the Appropriate Level of NEPA Review (Sec.  1501.3)
    CEQ proposed substantive revisions to Sec.  1501.3 to provide a 
more robust and consolidated description of the process agencies should 
use to determine the appropriate level of NEPA review, including 
addressing the threshold question of whether NEPA applies. CEQ also 
proposed clarifying edits, including adding paragraph headings to 
paragraphs (a) through (d). CEQ proposed these revisions to clarify the 
steps for assessing the appropriate level of NEPA review to facilitate 
a more efficient and predictable review process.
    First, as noted in section II.C.1, CEQ proposed to move paragraph 
(a) of 40 CFR 1501.1 (2020) to a new Sec.  1501.3(a), title it 
``Applicability,'' and add a sentence requiring agencies to determine 
whether NEPA applies to a proposed activity or decision as a threshold 
matter. CEQ proposed this move because the inquiry into whether NEPA 
applies is a component of determining the level of NEPA review. CEQ 
proposed to consolidate the steps in this process into one regulatory 
section to improve the clarity of the regulations. CEQ also noted that 
this consolidated provision is consistent with the approach in section 
106 of NEPA, which addresses threshold determinations on whether to 
prepare an EA/FONSI or EIS. 42 U.S.C. 4336. In moving the text, CEQ 
proposed to strike ``or is otherwise fulfilled'' after ``[i]n assessing 
whether NEPA applies'' because, as discussed in section II.C.1, CEQ 
proposed to remove the functional equivalence factor from the 
regulation.
    Second, CEQ proposed to move the threshold determination factors 
agencies should consider when determining whether NEPA applies from 
paragraphs (a)(1) and (a)(2) of 40 CFR 1501.1 (2020), to proposed 
paragraphs (a)(1) and (2), respectively. CEQ proposed to align the text 
in paragraph (a)(1) with the language proposed in Sec.  1500.6 by 
deleting ``expressly'' and replacing ``exempt from NEPA under another 
statute'' with ``exempted from NEPA by law.'' CEQ proposed to align the 
text in paragraph (a)(2) with the language in section 106(a)(3) of 
NEPA, changing ``another statute'' to ``another provision of law'' for 
consistency with the statutory text. 42 U.S.C. 4336(a)(3).
    One commenter requested that the final rule revise paragraph (a)(2) 
to clarify that in the event of a clear and fundamental conflict with 
another law, an agency should consider ``whether NEPA or that provision 
prevails under legal rules for resolving such conflicts between Federal 
laws.'' In requesting

[[Page 35461]]

this revision, the commenter described that if a situation arises in 
which NEPA clearly and fundamentally conflicts with a provision of 
State, Tribal, or local law, the agency has no further assessment to 
make before determining that NEPA prevails. However, if a situation 
arises in which NEPA clearly and fundamentally conflicts with another 
provision of a Federal law or a U.S. treaty with a foreign power, the 
commenter asserted the agency must make further assessments before it 
can determine whether NEPA or the other provision prevails.
    In the final rule, CEQ moves paragraph (a) of 40 CFR 1501.1 (2020) 
to a new Sec.  1501.3(a), ``Applicability,'' and makes the changes to 
paragraph (a) as proposed. CEQ also moves paragraphs (a)(1) and (a)(2) 
of 40 CFR 1501.1 (2020), to Sec.  1501.3(a)(1) and (2), respectively, 
except that CEQ adds the word ``Federal'' to the phrase ``another 
provision of law.'' CEQ interprets section 106(a)(3), 42 U.S.C. 
4336(a)(3), in light of the bedrock legal principle established by the 
Supremacy Clause of the Constitution that State, Tribal, or local laws 
do not override Federal law, the corollary that the Federal Government 
is not subject to State regulation in the absence of clear and 
unambiguous Congressional authorization, see EPA v. California ex rel. 
State Water Resources Control Bd., 426 U.S. 200, 211 (1976), and 
decades of case law that predated the NEPA amendments and informed 
CEQ's 2020 rule considering whether NEPA conflicts with another Federal 
law. See, e.g., Flint Ridge Development Co. v. Scenic Rivers Ass'n of 
Oklahoma, 426 U.S. 776, 788 (1976). To improve the clarity of the NEPA 
regulations, CEQ adds the word ``Federal'' to the sentence to avoid any 
potential confusion that non-Federal legal requirements can override 
NEPA. CEQ disagrees that an agency must apply principles of statutory 
interpretation to determine whether NEPA applies where its application 
would present a clear and fundamental conflict with the requirements of 
another provision of Federal law, because section 106(a) of NEPA 
provides that in such circumstances ``an agency is not required to 
prepare an environmental document with respect to a proposed agency 
action.'' 42 U.S.C. 4336(a).
    Third, CEQ proposed a new factor in paragraph (a)(3) to address 
circumstances where statutory provisions applicable to a proposed 
activity or decision make compliance with NEPA impossible. CEQ 
explained in the proposed rule that this factor is consistent with case 
law, principles of statutory construction, and the statutory 
requirement of section 102 of NEPA that agencies interpret and 
administer ``the policies, regulations, and public laws of the United 
States'' in accordance with NEPA's policies. 42 U.S.C. 4332(1).
    One commenter recommended the final rule change ``impossible'' to 
``impracticable'' while another commenter suggested that the final rule 
remove paragraph (a)(3) because it is duplicative of paragraph (a)(2). 
CEQ has considered the comments and agrees that proposed paragraph 
(a)(3) is duplicative of proposed paragraph (a)(2) and could therefore 
cause confusion. Therefore, CEQ does not include proposed paragraph 
(a)(3) in the final rule.
    Fourth, consistent with section 106(a)(1) and (4) of NEPA, 42 
U.S.C. 4336(a)(1) and (4), CEQ proposed to move the threshold 
determination factor regarding whether the activity or decision is a 
major Federal action from paragraph (a)(4) of 40 CFR 1501.1 (2020) and 
the factor regarding whether the activity or decision is non-
discretionary from paragraph (a)(5) of 40 CFR 1501.1 (2020), to 
proposed Sec.  1501.3(a)(4) and (a)(4)(ii), respectively. CEQ proposed 
to add a new paragraph (a)(4)(i) to add the factor regarding whether 
the proposed activity or decision is a final agency action under the 
APA. CEQ proposed to include whether an activity or decision is a final 
agency action or non-discretionary as subfactors of whether an activity 
or decision is a major Federal action in Sec.  1501.3(a)(4) because CEQ 
also proposed these as exclusions from the definition of ``major 
Federal action.'' The proposed rule explained that when agencies assess 
whether an activity or decision is a major Federal action, agencies 
determine whether they have discretion to consider environmental 
effects consistent with the definition of ``major Federal action'' in 
Sec.  1508.1.
    One commenter recommended the final rule exclude proposed paragraph 
(a)(4) because the question of whether NEPA applies precedes the 
determination of whether the proposed action is a major Federal action, 
and there is no need to consider whether an action is a major Federal 
action if NEPA does not apply to the action. Other commenters 
recommended proposed paragraphs (a)(4), (a)(4)(i), and (a)(4)(ii) be 
separated from paragraph (a) in order to clearly distinguish the 
factors for threshold applicability determination from the definition 
of ``major Federal action.''
    In the final rule, CEQ moves paragraph (a)(4) of 40 CFR 
1501.1(2020) regarding major Federal action to Sec.  1501.3(a)(3) and 
adds a cross reference to the definition Sec.  1508.1(w). CEQ makes 
this revision to enhance the clarity of the regulation and for 
consistency with section 106(a) of NEPA. 42 U.S.C. 4336(a). CEQ 
disagrees with the commenter that determining whether an action 
constitutes a major Federal action is not a component of determining 
NEPA applicability or that treating this determination separately will 
improve efficiency. Agencies have the flexibility to consider the 
factors in paragraph (a) in any order and, therefore, the regulation 
does not require an agency to evaluate whether an action is a major 
Federal action if NEPA does not apply to it for other reasons.
    In the final rule CEQ adds proposed paragraph (a)(4)(i) regarding 
final agency action to Sec.  1501.3(a)(4) to make this a stand-alone 
factor, rather than a component of determining whether an action is a 
major Federal action, for consistency with section 106(a) of NEPA and 
improved clarity. 42 U.S.C. 4336(a). The final rule also adds the word 
``not'' to paragraph (a)(4), so that it reads ``[w]hether the proposed 
activity or decision is not a final agency action'' for consistency 
with section 106(a)(1) of NEPA and parallelism with the other factors, 
which identify circumstances in which NEPA does not apply. 42 U.S.C. 
4336(a)(1). CEQ notes that this factor requires the agency to evaluate 
whether the proposed action would be a final agency action if 
ultimately taken by the agency. CEQ does not include a cross reference 
to the definition of ``major Federal action'' as proposed because the 
final rule does not include this as an exclusion from the definition.
    Lastly within paragraph (a), CEQ moves paragraph (a)(5) of 40 CFR 
1501.1 (2020) on non-discretionary actions to Sec.  1501.3(a)(5) to 
make this a stand-alone factor, rather than a sub-factor of major 
Federal action, for consistency with section 106(a)(4) of NEPA. 42 
U.S.C. 4336(a)(4). While non-discretionary actions are excluded from 
the definition of ``major Federal action'' in section 111(10) of NEPA 
and Sec.  1508.1(w), Congress determined that it was important to 
highlight this category as a component of determining NEPA 
applicability, and CEQ considers it appropriate for the regulations to 
do so as well. 42 U.S.C. 4336e(10). CEQ does not include a cross 
reference to the definition of ``major Federal action'' as proposed 
because the language in the statutory exclusion from the definition of 
``major Federal action'' is different from this exclusion.
    CEQ notes that where some components of an action are non-
discretionary, but others are

[[Page 35462]]

discretionary, an agency can exclude considerations of the non-
discretionary components from its NEPA analysis. That circumstance more 
logically presents an issue of the appropriate scope of the analysis, 
rather than of NEPA applicability, so, as discussed below, CEQ has 
included a reference to it in paragraph (b). For example, if a statute 
mandated an agency to make an affirmative decision once a set of 
criteria are met, but the agency has flexibility in how to meet those 
criteria, the agency exercises discretion on aspects of its decision 
and an analysis of alternatives and effects would inform the agency's 
exercise of discretion. Similarly, if a statute directs an agency to 
take an action, but the agency has discretion in how it takes that 
action, the agency can still comply with NEPA while carrying out its 
statutory mandate.
    Fifth, CEQ proposed to move, with clarifying edits and additions, 
paragraph (e) and its subparagraphs of 40 CFR 1501.9 (2020), 
``Determination of scope,'' to a new Sec.  1501.3(b), ``Scope of action 
and analysis,'' to provide the next step in determining the appropriate 
level of NEPA review--the scope of the proposed action and its 
potential effects. In addition, CEQ proposed moving into Sec.  
1501.3(b) one sentence from paragraph (a) of 40 CFR 1502.4 (2020) 
directing agencies to evaluate in a single NEPA review proposals 
sufficiently closely related to be considered a single action, and the 
text from paragraph (e)(1) of 40 CFR 1501.9 (2020) regarding connected 
actions, which are closely related Federal activities or decisions that 
agencies should consider in a single NEPA document. CEQ proposed to 
move paragraphs (e)(1)(i) through (e)(1)(iii) of 40 CFR 1501.9 (2020) 
providing the types of connected actions into Sec.  1501.3(b)(1) 
through (b)(3), respectively.
    CEQ proposed these changes because this longstanding principle from 
the 1978 regulations--that agencies should not improperly segment their 
actions--is relevant not only when agencies are preparing EISs, but 
also when agencies determine whether to prepare an EA or apply a CE. 
See, e.g., Fath v. Texas DOT, 924 F.3d 132, 137 (5th Cir. 2018) 
(``Agencies generally should not segment, or divide artificially a 
major Federal action into smaller components to escape the application 
of NEPA to some of its segments.'') (quotations omitted). CEQ proposed 
to consolidate this text into Sec.  1501.3(b) because the determination 
of the scope of the action, including any connected actions, 
necessarily informs the appropriate level of NEPA review. Because 
including this provision in Sec.  1501.3 would make it applicable to 
environmental reviews other than EISs, CEQ proposed to strike the 
sentence that accompanied the text in 40 CFR 1502.4(a) (2020) directing 
the lead agency to determine the scope and significant issues for 
analysis in the EIS as part of the scoping process. CEQ proposed in 
Sec.  1501.3(b)(1) to make a conforming change of ``environmental 
impact statements'' to ``NEPA review.''
    Multiple commenters provided feedback on the first sentence of 
proposed Sec.  1501.3(b) suggesting the final rule include additional 
language to limit it to an action that is under Federal agency control, 
and that NEPA reviews should not be used as a ``Federal handle'' to 
subject an entire project to Federal review where the Federal action 
comprises only one portion of the project. CEQ declines these edits 
because the sentence in question appropriately directs agencies to 
consider the scope of the proposed action and its potential effects 
consistent with longstanding agency practice.
    In the final rule, CEQ moves paragraphs (e) and (e)(1) of 40 CFR 
1501.9 (2020), to Sec.  1501.3(b), and moves paragraph (e)(1)(i) 
through (e)(1)(iii) of 40 CFR 1501.9 (2020) to Sec.  1501.3(b)(1) 
through (b)(3), respectively. CEQ adds the first sentence of proposed 
Sec.  1501.3(b) as proposed with an additional phrase ``whether aspects 
of the action are non-discretionary'' at the end of the first sentence 
for consistency with agency practice and case law recognizing that 
where some aspects of an agency's action are non-discretionary, the 
agency can properly exclude them from the scope of its analysis. Adding 
this reference to this sentence clarifies that while NEPA does not 
apply to an action that is wholly non-discretionary, agencies should 
approach circumstances in which aspects of an action are non-
discretionary, but others are discretionary, as a component of 
determining scope.
    Another commenter suggested use of ``potential effects'' be 
replaced with ``reasonably foreseeable effects'' to emphasize that 
agencies are not required to consider effects that are not reasonably 
foreseeable. CEQ agrees that an agency only needs to consider 
reasonably foreseeable effects in determining the scope of analysis but 
declines to make this change as the word ``effects'' is a defined term 
in the regulations meaning reasonably foreseeable effects. Upon further 
consideration, CEQ deletes the word ``potential'' before the word 
``effects'' to avoid any confusion that agencies must consider effects 
other than reasonably foreseeable effects.
    Some commenters requested additional clarity on the meaning of 
scope and how determination of scope under paragraph (b) relates to 
public engagement and the scoping process under Sec.  1502.4. CEQ adds 
a new second sentence to paragraph (b) to require agencies to use, as 
appropriate, the public engagement and scoping mechanisms in Sec. Sec.  
1501.9 and 1502.4 to inform consideration of the scope of the proposed 
action and determination of the level of NEPA review. CEQ adds this 
language, consistent with other changes made in Sec. Sec.  1501.9 and 
1502.4 to better explain the connection between scope, scoping, and 
public engagement.
    One commenter requested clarity on the relationship between the 
second and third sentences of proposed Sec.  1501.3(b), specifically 
suggesting deletion of the second sentence and revisions to the third 
sentence to provide a clearer standard for connected actions. Another 
commenter requested the final rule exclude ``Federal'' in the proposed 
sentence. CEQ declines the suggested edits. These sentences are based 
on longstanding provisions from 40 CFR 1502.4 and 1501.9(e)(1) (2020) 
and 40 CFR 1508.25(a)(1) (2019), and agencies have decades of 
experience applying them, including experience identifying those 
components of a project that have independent utility and therefore can 
be analyzed separately without running afoul of the prohibition on 
segmentation. The two regulatory requirements of the proposed second 
and third sentences--prohibiting agencies from breaking up a single 
``action'' into separate reviews and requiring them to review together 
closely related ``connected actions''--are related but distinct 
requirements, which is why CEQ included them in a single paragraph but 
in different sentences. CEQ also disagrees that connected actions 
should be broadened to include non-Federal actions. Non-Federal actions 
have long been excluded from connected actions because the purpose of 
the doctrine is to prevent the Federal Government from segmenting 
Federal actions into separate projects and thereby failing to consider 
the scope and impact of the Federal activity. See Sierra Club v. U.S. 
Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015). Including non-
Federal actions as connected actions would be inconsistent with the 
purpose of the concept and unsettle an aspect of the NEPA 
implementation that has been stable for decades.
    One commenter suggested that CEQ add language to Sec.  1501.3(b) 
stating that

[[Page 35463]]

to avoid segmentation, projects that are separate and distinct must 
have a logical end point; substantial independent utility; do not 
foreclose the opportunity to consider alternatives; and do not 
irretrievably commit Federal funds for closely related projects during 
the same time period, place, and type. CEQ declines to adopt the 
language suggested by the commenter. CEQ recognizes that some courts 
and agencies have included similar language in decisions and agency 
NEPA procedures (see, e.g., Del. Riverkeeper Network v. FERC, 753 F.3d 
1304, 1315 (D.C. Cir. 2014) (quoting Taxpayers Watchdog, Inc. v. 
Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987))); 23 CFR 771.111(f)) 
(2018), but considers providing additional details on segmentation more 
appropriately addressed in agency procedures that can be tailored to 
specific agency programs and actions.
    In moving the text from 40 CFR 1501.9(e) (2020) to Sec.  1501.3(b), 
CEQ proposed to strike paragraphs (e)(2) and (e)(3) of 40 CFR 1501.9 
(2020) relating to alternatives and impacts, respectively. CEQ proposed 
to delete these paragraphs because both the 2020 regulations and the 
proposed rule separately address the analyses of alternatives and 
effects regarding EISs (Sec. Sec.  1502.14, 1502.15) and EAs (Sec.  
1501.5(c)(2)(ii) and (c)(2)(iii)). CEQ considers it to be premature in 
the process, unnecessary, and unhelpful to address alternatives as part 
of determining the level of NEPA review.
    One commenter requested the final rule provide a better explanation 
regarding the deletion of 40 CFR 1501.9(e)(2) and (e)(3) (2020) and 
requested that CEQ provide more direction and guidance on consideration 
of alternatives and impacts. The commenter stated that this text has 
been in the regulations since 1978 and requested clearer justification 
for the changes. CEQ agrees that the effects of a proposed action are 
relevant to determining the scope of the action and analysis, which is 
why the first sentence of Sec.  1501.3(b) references effects. However, 
CEQ does not consider alternatives to be relevant to identifying the 
scope of action and analysis under paragraph (b), which is intended to 
inform an agency's determination under paragraph (c) of the appropriate 
level of review.
    In the final rule, CEQ adds the second sentence from proposed 
paragraph (d)(2)(vi), in which CEQ proposed to include an intensity 
factor from the 1978 regulations related to the relationship of 
actions, to be the fourth sentence of Sec.  1501.3(b). CEQ revises the 
language for clarity to specify that agencies ``shall not term an 
action temporary that is not temporary in fact or segment an action 
into smaller component parts to avoid significant effects.'' CEQ has 
made this change in the final rule because the text in proposed 
paragraph (d)(2)(vi) directs agencies not to segment actions, which is 
more appropriately addressed in the paragraph on scope than in the 
paragraph on intensity.
    Sixth, CEQ proposed to redesignate paragraph (a) of 40 CFR 1501.3 
(2020) as paragraph (c), title it ``Levels of NEPA review,'' 
incorporate the language of section 106(b)(3) of NEPA, 42 U.S.C. 
4336(b)(3), addressing the sources of information agencies may rely on 
when determining the appropriate level of NEPA review, and redesignate 
paragraphs (a)(1) through (a)(3) describing three levels of review--
CEs, EAs, and EISs--as paragraphs (c)(1) through (c)(3), respectively 
without change.
    CEQ received multiple comments on the incorporation of section 
106(b)(3) of NEPA into proposed paragraph (c). 42 U.S.C. 4336(b)(3). 
Some commenters supported this incorporation, while others urged CEQ to 
limit the standard established in section 106(b)(3) to the 
determination of whether to prepare an EA or an EIS. CEQ disagrees with 
these commenters and adds the proposed language in the final rule 
because CEQ considers it appropriate to direct agencies to make use of 
any reliable data source in considering whether to apply a CE to an 
action and notes that a decision based on unreliable data would likely 
be inconsistent with the principles of reasoned decision making. CEQ 
also considers the approach to reliable data and producing new research 
in section 106(b)(3) to be consistent with longstanding practice and 
case law and appropriate to apply broadly to an agency's determination 
of the appropriate level of NEPA review, including a determination that 
no such review is required. 42 U.S.C. 4336(b)(3). Moreover, because 
section 106(b)(3)(B) provides that an agency ``is not required to 
undertake new scientific or technical research'' outside of the 
identified circumstances, making this language inapplicable to CE 
determinations would mean that agencies have a broader (but undefined) 
obligation to undertake new scientific or technical research for those 
determinations. 42 U.S.C. 4336(b)(3). Such a result would undermine the 
efficiency of CEs and create confusion for agencies.
    Multiple commenters requested additional guidance from CEQ on how 
to apply the standard, what is considered a reliable data source, what 
costs or delays make obtaining new information unreasonable, and how 
long information will continue to be considered reliable. CEQ considers 
those questions to raise detailed or fact-specific issues that may be 
better suited to address in guidance or by agencies in considering 
specific NEPA reviews. CEQ notes that agencies have extensive 
experience in assessing the reliability of information in the NEPA 
process, and the regulations provide additional direction in Sec. Sec.  
1502.21 and 1506.6. CEQ will consider whether additional guidance is 
necessary to assist agencies in applying the standard.
    CEQ makes these revisions as proposed in the final rule with one 
clarifying change to paragraph (c)(1) to replace ``[n]ormally does not 
have significant effects and is'' with ``[i]s appropriately.'' As 
phrased, this provision could be read to conflict with the process 
provided for in Sec.  1501.4(b) for an agency to determine that a 
proposed action can be categorically excluded notwithstanding the 
existence of extraordinary circumstances. This change also provides for 
a parallel structure with paragraphs (c)(2) and (c)(3).
    Seventh, CEQ proposed to redesignate paragraph (b) of 40 CFR 1501.3 
(2020) as Sec.  1501.3(d), title it ``Significance determination--
context and intensity,'' and address factors agencies must consider in 
determining significance by restoring with some modifications the 
consideration of ``context'' and ``intensity'' from the 1978 
regulations, which appeared in the definition of ``significantly.'' See 
40 CFR 1508.27 (2019). The proposed rule explained that because this 
text provides direction on how agencies determine the significance of 
an effect, rather than a definition, addressing significance 
determinations in Sec.  1501.3 is more appropriate than Sec.  1508.1.
    Eighth, CEQ proposed to modify the introductory language in 
paragraph (d) by replacing the requirement that agencies ``analyze the 
potentially affected environment and degree of the effects'' with a 
requirement for agencies to consider the context of an action and the 
intensity of the effects when considering whether the proposed action's 
effects are significant. CEQ proposed to strike the second sentence of 
40 CFR 1501.3(b) (2020) requiring agencies to consider connected 
actions because this concept would be included in proposed paragraph 
(c).
    Multiple commenters expressed support for the overall restoration 
of the context and intensity factors, as well as the proposed expansion 
of the factors, asserting that doing so aligns with

[[Page 35464]]

longstanding case law and adds certainty to the process. A few 
commenters generally opposed the reintroduction and expansion of the 
factors, asserting they would expand the scope of NEPA review rather 
than encourage streamlining and that the expansion of the factors is 
inconsistent with the statutory amendments to NEPA. A few commenters 
requested that proposed paragraph (d) clarify that agencies may 
consider mitigation in making a significance determination.
    In the final rule, consistent with the proposal, CEQ redesignates 
paragraph (b) of 40 CFR 1501.3 (2020) as Sec.  1501.3(d), titles it 
``Significance determination--context and intensity,'' revises the 
first sentence of paragraph (d) with additional modifications to the 
proposal, and strikes the second sentence of 40 CFR 1501.3(b) (2020). 
CEQ adds and revises the factors as discussed further in this section. 
CEQ disagrees that the factors will expand the scope of NEPA review. 
Rather, these factors, including the additional factors, will assist 
agencies in determining the appropriate level of NEPA review for their 
proposed actions by focusing their review on the critical factors in 
determining significance.
    As discussed further in this section, CEQ moves language regarding 
beneficial and adverse effects as well as the language regarding 
segmentation to the end of paragraph (d) in response to commenters' 
recommendations because this language is more generally applicable and 
not specific to context or intensity. Finally, CEQ declines to address 
the role of mitigation in this paragraph. CEQ has clarified in Sec.  
1501.6 that if an agency determines that a proposed action would not 
have a significant effect because of the implementation of mitigation, 
then the agency must document its finding in a mitigated FONSI. 
Therefore, addressing mitigation and its relation to significance is 
unnecessary in this paragraph.
    Ninth, CEQ proposed to strike 40 CFR 1501.3(b)(1) (2020), replace 
it with proposed paragraph (d)(1), and restore the requirement for 
agencies to analyze the significance of an action in several contexts 
consistent with the 1978 regulations. CEQ also proposed to add examples 
of contexts that may be relevant. In the first sentence, CEQ proposed 
to encourage agencies to consider the characteristics of the relevant 
geographic area, such as proximity to unique or sensitive resources or 
vulnerable communities. The proposed rule indicated that such resources 
may include historic or cultural resources, Tribal sacred sites, and 
various types of ecologically sensitive areas. CEQ explained that this 
revision relates to the intensity factor in proposed paragraph 
(d)(2)(iii), which CEQ proposed to restore from the 1978 regulations. 
CEQ proposed to include it as a context factor as well since it relates 
to the setting of the proposed action and to encourage agencies to 
consider proximity to communities with environmental justice concerns.
    CEQ also proposed to add a third sentence to paragraph (d)(1) 
encouraging agencies to consider the potential global, national, 
regional, and local contexts, which may be relevant depending on the 
scope of the action, consistent with the 2020 and 1978 regulations. 
Additionally, CEQ proposed to move and revise text providing that the 
consideration of short- and long-term effects is relevant to the 
context of a proposed action from 40 CFR 1501.3(b)(2)(i) (2020) to the 
end of the third proposed sentence in paragraph (d)(1) to encourage 
agencies to consider the duration of the potential effects whether they 
are anticipated to be short- or long-term.
    Multiple commenters expressed support for the proposed restoration 
of the consideration of context in determining significance, asserting 
that doing so is consistent with case law and would promote compliance 
with NEPA's mandate to consider all significant effects. A few 
commenters requested the regulations define or add clarity on the terms 
``unique or sensitive resources,'' ``vulnerable communities,'' and 
``relevant geographic area.'' Some commenters supported the use of 
these terms while others expressed concern that without clear 
definitions there could be project delays or increased litigation risk.
    In the final rule CEQ strikes 40 CFR 1501.3(b)(1) (2020) and 
replaces it in Sec.  1501.3(d)(1) with the text in proposed paragraph 
(d)(1) with a few modifications. CEQ notes that paragraph (d)(1) 
requires agencies to analyze the significance of an action in several 
contexts, as evidenced by use of the term ``shall'' in the first 
sentence, while the second and third sentences use ``should'' to 
clarify that the determination the appropriate contextual factors will 
depend on the particular proposed action. In the final rule, CEQ uses 
the term ``communities with environmental justice concerns'' instead of 
``vulnerable communities'' because CEQ has added this as a defined term 
in Sec.  1508.1, and it is consistent with use of this term elsewhere 
in the rule. CEQ excludes the word ``relevant'' before ``geographic 
area'' in the final rule text as an unnecessary modifier since the 
encouragement is to consider the geographic area of the proposed 
action, which will necessarily depend on the context and scope of the 
proposed action. Moreover, agencies have decades of experience 
implementing a similar provision in the 1978 regulations, which did not 
include the word ``relevant'' before ``geographic area,'' and the 
addition of ``relevant'' could have the unintended consequence of 
indicating to agencies that this provision requires a substantially 
different analysis. CEQ declines to define ``geographic area'' and 
``unique or sensitive resources'' as these phrases have been used in 
the regulations since 1978, and agencies have extensive experience 
interpreting them in the context of particular proposed actions. 
Further, CEQ is unaware of any misunderstanding about the meaning of 
these phrases and is concerned that adding a new regulatory definition 
could be disruptive for agencies.
    Some commenters expressed support for the language encouraging 
agencies to consider the potential global, national, regional, and 
local contexts. Other commenters opposed the inclusion of all four 
contexts, and in particular the inclusion of ``global,'' stating that 
requiring agencies to consider all four would expand the complexity and 
scope of NEPA reviews and lead to inappropriate determinations that 
certain projects require an EIS, strain agency resources, cause delays 
and increase litigation risk, and allow subjectivity to be introduced 
to the decision. Other commenters requested more clarity on the types 
of actions that require consideration of potential global, national, 
regional, and local contexts, with another commenter requesting that 
the language be modified to provide flexibility to consider appropriate 
geographic contexts based on the site-specific action rather than 
always require evaluation of all four contexts.
    In the final rule, CEQ includes the language on global, national, 
regional, and local contexts as proposed in Sec.  1501.3(d)(1). The 
2020 rule described ``context'' as related to the potentially affected 
environment in determining significance, stating that this reframing 
relates more closely to physical, ecological, and socio-economic 
aspects of the environment.\66\ CEQ has reconsidered this approach and 
now finds it to be unhelpful and potentially limiting. While CEQ agrees 
that the contexts relevant to an agency's assessment of significance 
will be those that are potentially affected, identifying

[[Page 35465]]

the global, national, regional, and local contexts reminds agencies 
that they should consider whether proposed actions have reasonably 
foreseeable effects across these various contexts. Describing context 
in this manner is also consistent with the decades of experience 
agencies had implementing the 1978 regulations and is consistent with 
the concepts of indirect and cumulative effects. CEQ has also 
reconsidered the statement in the 2020 rule that the affected 
environment, is ``usually'' only the local area, 40 CFR 1501.3(b)(1) 
(2020) (``For instance, in the case of a site-specific action, 
significance would usually depend only upon the effects in the local 
area.'') (emphasis added), because many Federal actions have reasonably 
foreseeable effects that extend regionally, nationally, or globally.
---------------------------------------------------------------------------

    \66\ CEQ, 2020 Final Rule, supra note 39, at 43322.
---------------------------------------------------------------------------

    CEQ notes that Sec.  1501.3(d)(1) does not require agencies to 
evaluate all four contexts--global, national, regional, and local--for 
every proposed action. Rather, agencies should determine the 
appropriate contexts to consider based on the scope of the action and 
its anticipated reasonably foreseeable effects.
    CEQ disagrees with commenters' assertion that this language will 
lead agencies to expand the evaluation of effects beyond those that are 
reasonably foreseeable. This provision provides guidance to agencies on 
how to determine whether an effect is significant, and the word 
``effect'' is a defined term in the regulations that is always limited 
to reasonably foreseeable effects. This text recognizes that the 
global, national, regional, or local context may bear on assessing the 
significance of reasonably foreseeable effects. For example, in 
determining the significance of an effect on highly migratory marine 
species that travels thousands of miles each year from waters around 
Antarctica to the Arctic Ocean, the agency may need to consider the 
global context in which the species migrates, including other stressors 
that occur at other points of the migration route. Conversely, dam 
operations in a transboundary watershed may have consequences on 
aquatic ecosystems that are appropriately considered at the regional or 
watershed level and that may need to consider management and stressors 
extending across national boundaries. The regional nature of the 
resource effects, however, may not necessitate an analysis of global 
context. A decision to fund a project to construct a building to 
provide additional office space for a Federal agency on previously 
developed land may have consequences limited to the local area around 
the new building, and may not necessitate an analysis of global, State, 
or regional context.
    Tenth, CEQ proposed to strike 40 CFR 1501.3(b)(2) (2020), replace 
it with proposed paragraph (d)(2), and reinstate ``intensity'' as a 
consideration in determining significance, which CEQ reframed in the 
2020 rule as the ``degree'' of the action's effects. Specifically, CEQ 
proposed to strike the sentence in 40 CFR 1501.3(b)(2) (2020) 
encouraging agencies to consider the list of factors in assessing the 
degree of effects and replace it with a requirement to analyze the 
intensity of effects in light of the list of factors as applicable to 
the proposed action and in relation to one another. CEQ proposed to 
reinstate consideration of intensity because the concept of intensity 
and the intensity factors have long provided agencies with guidance in 
how the intensity of an action's effects may inform the significance 
determination. Further, CEQ noted it had reconsidered its position in 
the 2020 rule that removal of intensity as a consideration was based in 
part on the proposition that effects are not required to be intense or 
severe to be considered significant.\67\ CEQ does not consider 
``intense'' to be a synonym for ``significant;'' rather, it points to 
factors to inform the determination of significance that are part of 
longstanding agency practice.
---------------------------------------------------------------------------

    \67\ CEQ, 2020 Final Rule, supra note 39, at 43322.
---------------------------------------------------------------------------

    Multiple commenters expressed general support for the restoration 
of the intensity factors in the proposed rule or identified support for 
specific factors, whereas others expressed general opposition or 
opposition to particular factors. One commenter suggested that the 
final rule replace the phrases ``potential'' and ``degree to which the 
proposed action may adversely affect'' in proposed paragraphs 
(d)(2)(ii), (iii), (v), (viii), and (x) with ``the degree of any 
reasonably foreseeable adverse effect of the proposed action on.'' The 
commenter also suggested the final rule revise paragraph (d)(2)(ix) to 
``the degree of any reasonably foreseeable and disproportionate adverse 
effects from the proposed action on communities with environmental 
justice concerns.'' The commenter asserted these changes would focus 
the consideration on reasonably foreseeable effects, consistent with 
the statute, while ``may adversely affect'' could be read to mean 
agencies should consider speculative scenarios and effects that are not 
reasonably foreseeable. Other commenters made similar suggestions, 
requesting the regulations consistently refer to ``reasonably 
foreseeable effects.'' Relatedly, a commenter recommended the 
regulations consistently refer to ``the proposed action,'' rather than 
``the action'' in the factors. Some commenters opposed the inclusion of 
``adverse'' in front of multiple factors.
    CEQ declines to make these changes in the final rule. The intensity 
factors inform an agency's determination of whether an effect is 
significant, and the word ``effect'' is a defined term that means 
reasonably foreseeable effects. Therefore, paragraph (d)(2) applies 
only to reasonably foreseeable effects and repeating the phrase 
``reasonably foreseeable'' throughout this paragraph is unnecessary. 
CEQ retains ``adverse'' in the final rule consistent with the 
definition of ``significant effects'' and the language in Sec.  
1501.3(d), which clarify that only adverse effects can be significant.
    Eleventh, CEQ proposed to clarify in proposed paragraph (d)(2)(i) 
that agencies should focus on adverse effects in determinations of 
significance, consistent with NEPA's policies and goals as set forth in 
section 101 of the statute. 42 U.S.C. 4331. CEQ proposed to redesignate 
paragraph (b)(2)(ii) of 40 CFR 1501.3 (2020) as paragraph (d)(2)(i) 
regarding beneficial and adverse effects and revise it to state that 
``[e]ffects may be beneficial or adverse'' but ``only actions with 
significant adverse effects require an [EIS].''
    CEQ proposed to add a third sentence to this paragraph to indicate 
that a significant adverse effect may exist even if the agency 
considers that on balance the effects of the action will be beneficial. 
The proposed rule explained that this provision is intended to be 
distinct from weighing beneficial effects against adverse effects to 
determine that an action's effects on the whole are not significant. 
Rather, an action with only beneficial effects and no significant 
adverse effects does not require an EIS, consistent with CEQ's proposed 
revisions to Sec.  1501.3(d)(2), regarding the meaning of intensity.
    CEQ proposed to strike paragraph (b)(2)(i) of 40 CFR 1501.3 (2020) 
but incorporate the text into a fourth sentence in paragraph (d)(2)(i) 
to clarify that agencies should consider the duration of effects and 
include an example of such consideration--an action with short-term 
adverse effects but long-term beneficial effects. The proposed rule 
explained that while significant adverse effects may exist even if the 
agency considers that on balance the effects of the action will be 
beneficial, the agency should consider any related short- and long-term 
effects in the same effect category together in evaluating intensity.

[[Page 35466]]

    Multiple commenters supported proposed paragraph (d)(2)(i), 
expressing support for the qualification that only actions with 
significant adverse effects require an EIS because it will reduce 
expenditure of agency resources on unnecessary EISs, streamline the 
NEPA process, and promote a holistic review of projects. One commenter 
cited Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501 (6th 
Cir. 1995) to support CEQ's proposed approach.
    Multiple commenters also opposed the proposal to only require an 
EIS for actions with significant adverse effects. Some commenters 
asserted that proposed (d)(2)(i) and the reference to adverse effects 
in other proposed intensity factors would illegally limit the scope of 
NEPA because the statutory requirement to prepare an EIS does not 
distinguish between adverse and beneficial effects. A few commenters 
cited case law that they argued contravenes the proposed change. Hiram 
Clarke Civil Club v. Lynn, 476 F.2d 421 (5th Cir. 1973); Environmental 
Defense Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981). One commenter also 
asserted the proposal poses a risk that agencies will not assess 
significant adverse effects or evaluate less damaging alternatives, and 
that the proposed provision could be interpreted to give agencies 
discretion to opt out of preparing an EIS based on unsupported claims 
that the project will be beneficial or based on the project's stated 
intent. One commenter further asserted that almost no environmentally 
significant project completely avoids all potentially significant 
adverse effects and also expressed concern about the lack of an EIS 
limiting the opportunity for the public to provide comment where they 
might raise other potentially adverse effects. A few commenters 
expressed concern that the proposed language favors a certain type of 
project over another without statutory or factual support for doing so.
    Some commenters interpreted the language in the last two sentences 
of proposed paragraph (d)(2)(i) to read that CEQ supported a 
``netting'' approach to EISs, whereby if an action has significant 
adverse effects but had net beneficial effects then the agency would 
not have to prepare an EIS. Some commenters supported this 
interpretation while others opposed it. A few commenters requested CEQ 
clarify that the significance determination through the application of 
context and intensity factors across timescales or duration applies to 
each individual ``effect category'' that is implicated by the proposed 
action. The commenters state that without this clarification, decision 
makers could conflate categories of effects by considering an action's 
effects as a whole thereby dismissing significant adverse effects 
within an individual category on a given timescale if the decision 
maker determines the action is beneficial overall. Another commenter 
requested the regulations clarify that an EIS is not required where the 
beneficial effects of a proposed action outweigh its adverse effects.
    In the final rule, CEQ addresses the concept that only adverse 
effects are significant by moving the last sentence of proposed 
paragraph (d)(2)(i) to paragraph (d) and revising it because this 
concept is a more general consideration and not specific to intensity. 
CEQ also includes a definition of ``significant effect'' in Sec.  
1508.1 to provide further clarity.
    Specifically, CEQ strikes 40 CFR 1501.3(b)(2)(i) and (ii) (2020) 
because Sec.  1501.3(d) addresses consideration of the duration of 
effects and whether a particular category of effect is adverse or 
beneficial coupled with the definition of ``significant effects'' in 
Sec.  1508.1(mm). CEQ includes the first clause of the last sentence of 
proposed paragraph (d)(2)(i), encouraging agencies to consider the 
duration of effects, as the second sentence of Sec.  1501.3(d) and adds 
an introductory clause to the sentence: ``[i]n assessing context and 
intensity.'' CEQ also makes ``effects'' singular to emphasize that this 
analysis is done on an effect-by-effect basis and does not allow 
agencies to weigh a beneficial effect of one kind against an adverse 
effect of another kind or evaluate whether an action is beneficial or 
adverse in net to determine significance. For example, an agency cannot 
compare and determine significance by weighing adverse water effects 
against beneficial air effects, or adverse effects to one species 
against beneficial effects to another species. Then, CEQ includes and 
modifies the second clause of the last sentence of proposed paragraph 
(d)(2)(i), providing that an action may have short-term adverse effects 
but long-term beneficial effects, as the third sentence in Sec.  
1501.3(d) to explain that agencies may consider the extent to which an 
effect is adverse at some points in time and beneficial at others. CEQ 
also includes an illustrative example of a proposed action for habitat 
restoration where an agency may consider both any short-term harm to a 
species during implementation of the action and any benefit to the same 
species once the action is complete. As another example, an action that 
will enhance recharge of a groundwater aquifer once completed could 
have an adverse effect on groundwater recharge in the short term. In 
evaluating the significance of the action's effect on groundwater 
recharge, the agency should consider both the short-term harm and long-
term benefit. In some circumstances, an effect may be significant due 
to the harm during one period of time regardless of the benefit at 
another. For example, if implementation of a habitat restoration action 
may extirpate a species from the area, then an agency could not 
reasonably rely on long-term habitat improvements resulting from the 
action to determine that the overall effect to the species is not 
significant. The approach to considering duration contemplated by this 
language is similar to the familiar analysis agencies engage in with 
respect to compensatory mitigation, in which they may conclude that 
benefits from the implementation of mitigation measures reduce the 
anticipated adverse effects of a proposed action below the level of 
significance.
    In place of the third sentence of proposed paragraph (d)(2)(i), CEQ 
adds a new third sentence at the end of paragraph (d) that prohibits 
agencies from offsetting an action's adverse effects with other 
beneficial effects to determine significance. This sentence also 
includes a parenthetical example that agencies may not offset an 
action's adverse effect on one species with a beneficial effect on 
another species. The CEQ regulations have never allowed agencies to use 
a net benefit analysis across environmental effects to inform the level 
of NEPA review. Because the final rule clarifies that only adverse 
effects may be significant, CEQ considers it especially important to 
emphasize this prohibition in the regulatory text to ensure agencies 
identify the appropriate level of review for their proposed actions. 
Finally, CEQ does not include the second sentence of proposed paragraph 
(d)(2)(i) stating that only actions with significant adverse effects 
require an EIS because this is made clear through the limitation in the 
definition of ``significant effects'' in Sec.  1508.1(mm) to adverse 
effects.
    The Fifth and Sixth Circuit cases cited by the commenters 
illustrate the split among courts on whether actions with only 
significant beneficial effects and no significant adverse effects 
trigger an EIS. See also Humane Soc'y of U.S. v. Locke, 626 F.3d 1040, 
1056 n.9 (9th Cir. 2010) and Drakes Bay Oyster Co. v. Jewell, 747 F.3d 
1073, 1090 n.11 (2014) discussing the split in courts in dicta. CEQ 
considers the Congressional declaration of purpose in section 2 of NEPA 
and the Congressional declaration of national

[[Page 35467]]

environmental policy in section 101 of NEPA to indicate that Congress 
intended for ``significant effects'' to be those that are damaging, 
which is what CEQ interprets the phrase ``adverse effects'' to mean. 42 
U.S.C. 4321, 4331. The recent amendments to NEPA bolster this 
interpretation because section 102(2)(C)(iii) directs analysis of 
``negative environmental impacts of the no action alternative'' and 
section 108(1) refers to the significance of adverse effects related to 
programmatic environmental documents. 42 U.S.C. 4332(2)(C)(iii), 
4336b(l). CEQ notes too that the definition of ``significant effects'' 
and Sec.  1501.3(d) do not eliminate the requirement for agencies to 
identify and discuss all reasonably foreseeable environmental effects 
whether adverse or beneficial when preparing an EIS.
    Twelfth, CEQ proposed to redesignate paragraph (b)(2)(iii) of 40 
CFR 1501.3 (2020) as paragraph (d)(2)(ii) and make a clarifying edit to 
the factor relating to effects on health and safety by adding language 
indicating that the relevant consideration is ``the degree to which'' 
the proposed action may ``adversely'' affect public health and safety. 
Commenters suggested that the final rule add ``welfare'' and ``public 
well-being'' to this factor. CEQ declines these additions because 
public health and safety have a more precise meaning than ``welfare'' 
and ``well-being'' and therefore, will be more readily applied by 
agencies. Further, this factor has remained unchanged since 1978, so 
agencies have a long history of examining these in the consideration of 
significant effects on the human environment. In the final rule, CEQ 
redesignates paragraph (b)(2)(iii) of 40 CFR 1501.3 (2020) as Sec.  
1501.3(d)(2)(i) and revises it as proposed but omits ``proposed'' 
before ``action'' for consistency with the language of the factors.
    Thirteenth, CEQ proposed to add a new paragraph (d)(2)(iii) to add 
a new intensity factor to consider the degree to which the proposed 
action may adversely affect unique characteristics of the geographic 
area such as historic or cultural resources, park lands, Tribal sacred 
sites, prime farmlands, wetlands, wild and scenic rivers, or 
ecologically critical areas. CEQ proposed this factor to reinstate a 
factor from the 1978 regulations, with clarifying edits, which agencies 
have considered for decades. As noted earlier in this section, CEQ 
proposed to use the wording from the 1978 factor on unique 
characteristics in paragraph (d)(1) on context because they relate to 
the setting of an action. The proposed rule indicated that 
consideration of this factor is consistent with both the definition of 
``effects'' and the policies and goals of NEPA. 42 U.S.C. 4331.
    Some commenters expressed support for the restoration of the factor 
in proposed paragraph (d)(2)(iii) and the proposed modifications to the 
1978 regulatory text. One commenter recommended removing ``historic or 
cultural resources'' because it is redundant and imprecise. Two 
commenters asked that the final rule define ``park lands,'' ``prime 
farmlands,'' and ``ecologically critical areas'' for clarity. A few 
commenters requested that the final rule broaden the reference to 
Tribal sacred sites to include culturally significant sites, including 
sites of Native Hawaiians, Alaskan Natives, and indigenous peoples in 
the United States and its Territories. Other commenters requested use 
of ``and other indigenous communities'' to include non-federally 
recognized Tribes.
    CEQ adds proposed new paragraph (d)(2)(iii) at Sec.  
1501.3(d)(2)(ii) in the final rule, revising ``park lands'' to 
``parks'' to modernize the language that was included in the 1978 
regulations and omitting ``proposed'' before ``action'' for consistency 
with the language of the factors. CEQ declines to remove the word 
``prime'' before ``farmlands,'' which would substantially expand this 
factor beyond historical practice and including all farmland within 
this factor would be inconsistent with directing agencies to consider 
the ``unique characteristics of the geographic area.'' CEQ declines to 
make the other changes suggested by the commenters. However, CEQ notes 
that in addition to ``Tribal sacred sites,'' the list of intensity 
factors includes several other factors that may be relevant to Tribal 
and Indigenous cultural sites, including ``historic or cultural 
resources'' and ``resources listed or eligible for listing in the 
National Register of Historic Places.'' The list also directs agencies 
to consider ``[w]hether the action may violate relevant Federal, State, 
Tribal, or local laws,'' as well as ``[t]he degree to which the action 
may have disproportionate and adverse effects on communities with 
environmental justice concerns'' and ``[t]he degree to which the action 
may adversely affect rights of Tribal Nations that have been reserved 
through treaties, statutes, or Executive orders.'' Finally, CEQ notes 
that the list is not intended to be an exhaustive list of all potential 
factors, and agencies can consider other factors in their determination 
of significance as appropriate for the proposed action.
    Fourteenth, CEQ proposed to redesignate paragraph (b)(2)(iv) of 40 
CFR 1501.3 (2020) as paragraph (d)(2)(iv) and revise ``effects that 
would'' to ``actions that may'' violate ``relevant'' Federal, State, 
Tribal, or local laws. CEQ proposed to add ``other requirements'' after 
law as well as ``inconsistencies'' with ``policies designed for 
protection of the environment'' because agencies should not necessarily 
limit their inquiry to statutory requirements. CEQ explained that it 
may be appropriate for agencies to give relatively more weight to 
whether the action threatens to violate a law imposed for environmental 
protection as opposed to a policy, but formally adopted policies 
designed for the protection of clean air, clean water, or species 
conservation, for example, may nonetheless be relevant in evaluating 
intensity.
    Some commenters recommended the final rule strengthen this factor 
to identify examples of relevant environmental protection laws and 
policies to ensure Federal agencies do not overlook actions taken by 
States to address climate change or environmental justice. Another 
commenter suggested CEQ provide guidance encouraging agencies to 
coordinate with coastal programs to achieve consistency with all 
relevant State and Territory plans, policies, and initiatives to 
protect coastal uses and resources.
    In the final rule, CEQ redesignates paragraph (b)(2)(iv) of 40 CFR 
1501.3 (2020) as Sec.  1501.3(d)(2)(iii) and revises it as proposed. 
CEQ declines to make the commenters' suggested edits as they are 
unnecessarily specific for this rule and encompassed in the proposed 
text. However, this does not preclude an agency from identifying more 
specific examples in its agency NEPA procedures if the agency 
determines it would be helpful for assessing significance for its 
proposed actions.
    Fifteenth, CEQ proposed to add a new paragraph (d)(2)(v) to 
consider the degree to which effects are highly uncertain. The 1978 
regulations included factors for ``controversial'' effects and those 
that are ``highly uncertain or involve unique or unknown risks.'' CEQ 
proposed to restore a modified version of this concept that makes clear 
that the uncertainty of an effect is the appropriate consideration, and 
not whether an action is controversial. The proposed rule explained 
that while a legitimate disagreement on technical grounds may relate to 
uncertainty, this approach would make clear that public controversy 
over an activity or effect is not a factor for determining 
significance.
    A few commenters expressed support for proposed paragraph 
(d)(2)(v). A couple of commenters suggested the

[[Page 35468]]

final rule include the phrase ``high degree of uncertainty'' to better 
conform with NEPA practice under the 1978 regulations. Another 
commenter requested clarity on what is meant by ``highly uncertain.'' A 
few commenters recommended the regulations restore ``highly 
controversial'' from the 1978 regulations because it was well-developed 
in case law and doing so would provide clarity to agencies on how to 
assess the degree to which effects were ``highly controversial.''
    CEQ adds proposed new paragraph (d)(2)(v) at Sec.  1501.3(d)(2)(iv) 
in the final rule. CEQ declines to use the term ``highly 
controversial.'' While some may be familiar with the terminology, it 
could mistakenly give the impression that it refers to public 
controversy. CEQ also declines to use ``high degree of uncertainty,'' 
which means the same thing as ``highly uncertain,'' because the phrase 
``highly uncertain'' has been included in the NEPA regulations since 
1978 and making this substitution would require restructuring the 
sentence in a manner that would reduce parallelism and readability 
without otherwise improving the clarity or improving meaning. See 40 
CFR 1508.27(b)(5) (2019).
    Sixteenth, CEQ proposed to add a new paragraph (d)(2)(vi) to 
consider the degree to which the action may relate to other actions 
with adverse effects. CEQ proposed this paragraph to reinstate a factor 
from the 1978 regulations and for consistency with the longstanding 
NEPA principle that agencies cannot segment actions to avoid 
significance. See, e.g., Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 
1985); Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 
2002).
    Some commenters supported the restoration of this factor, but 
suggested removal of the term ``adverse.'' Other commenters indicated 
that CEQ did not explain why it proposed to use ``in the aggregate'' 
instead of the 1978 regulations' phrasing ``cumulatively significant 
impact on the environment'' and asserted that this would be a confusing 
change. One commenter expressed support for the second sentence in the 
factor specifying that an agency cannot segment or term an action 
temporary that is not in fact temporary.
    Another commenter opposed the restoration of this intensity factor, 
asserted it would confuse the NEPA process and imply that an EIS can be 
required solely based on the effects of other actions when the action 
under consideration does not have significant adverse effects itself. 
Another commenter also expressed concern about the factor and stated 
that if CEQ's goal is to ensure that the potential for repetition or 
recurrence of an impact is considered, the regulations should state 
this more clearly.
    Upon further consideration, CEQ is not restoring this text from the 
1978 regulations to the final rule. The inclusion of cumulative effects 
as a component of effects already addresses the interrelationship 
between the effects of an action under consideration. Moreover, rather 
than identifying a factor for an agency to consider in assessing 
significance, this language more directly relates to the prohibition on 
an agency segmenting an action, which the final rule addresses in Sec.  
1501.3(b) related to the scope of an action and effects.
    Seventeenth, CEQ proposed to add a new paragraph (d)(2)(vii) to add 
a factor relating to actions that would affect historic resources 
listed or eligible for listing in the National Register of Historic 
Places. CEQ proposed this factor to generally reinstate a factor from 
the 1978 regulations, which agencies have decades of experience 
considering. The proposed rule explained that consideration of this 
factor furthers the policies and goals of NEPA, including to ``preserve 
important historic, cultural, and natural aspects of our national 
heritage.'' 42 U.S.C. 4331.
    A couple of commenters expressed support for proposed paragraph 
(d)(2)(vii), while another commenter requested the final rule broaden 
the factor by inserting ``or State or Tribal equivalents to registers 
of historic places'' to the end of the factor. CEQ adds proposed new 
paragraph (d)(2)(vii) at Sec.  1501.3(d)(2)(v) in the final rule. CEQ 
declines the commenter's recommended addition because the revised 
provision is consistent with decades of agency practice. CEQ notes that 
the list of intensity factors is not exhaustive.
    Eighteenth, CEQ proposed to add a new paragraph (d)(2)(viii) to add 
the degree to which the action may adversely affect an endangered or 
threatened species or its habitat, including critical habitat under the 
Endangered Species Act. 16 U.S.C. 1532(5). CEQ proposed to reinstate 
and expand an intensity factor from the 1978 regulations, which only 
addressed critical habitat. CEQ proposed this addition to clarify that 
agencies should consider effects to the habitat of endangered or 
threatened species even if it has not been designated as critical 
habitat.
    Some commenters expressed support for the expansion of the factor 
to include impacts to habitat regardless of whether they have been 
designated as critical. A few commenters disagreed with the proposed 
expansion of this intensity factor and suggested that the final rule 
restore the 1978 language that ``limited'' this factor to review of 
critical habitat. Multiple commenters requested the final rule exclude 
this factor, asserting that CEQ failed to justify the proposed 
expansion to require agencies to consider the effect of an action on 
habitat that have not been designated as critical habitats under the 
Endangered Species Act. Commenters stated that it was unclear why this 
would be an intensity factor when agencies already must engage in ESA 
section 7 consultation. One commenter expressed concern the proposed 
expansion would expand the scope of the significance determination, 
resulting in project delays and siting issues. Other commenters 
specifically recommended removing ``habitat, including'' because the 
language expands habitat considerations beyond what is protected by 
Federal law.
    CEQ adds proposed new paragraph (d)(2)(viii) in Sec.  
1501.3(d)(2)(vi) of the final rule, as proposed, because critical 
habitat is a regulatory category under the Endangered Species Act 
designation process and does not necessarily align with the geographic 
range of the species or the habitat a species is using. Major Federal 
actions can have significant effects on endangered or threatened 
species habitat regardless of whether critical habitat has been 
designated. Moreover, the section 7 consultation process considers 
effects to listed species generally, including where habitat that has 
not been designated as critical habitat is used by a species and 
therefore, damage to that habitat may affect the species. As a result, 
revising the factor in this manner helps to align environmental review 
under NEPA and the section 7 consultation process.
    Nineteenth, CEQ proposed to add a new paragraph (d)(2)(ix) to 
include consideration of the degree to which the action may have 
disproportionate and adverse effects on communities with environmental 
justice concerns. CEQ proposed this factor because evidence continues 
to accumulate that communities with environmental justice concerns 
often experience disproportionate environmental burdens such as 
pollution or urban heat stress, and often experience disproportionate 
health and other socio-economic burdens that make them more susceptible 
to adverse effects.
    Multiple commenters expressed support for the proposed addition of 
environmental justice as an intensity factor. One commenter requested 
clarity on what is meant by ``the degree to

[[Page 35469]]

which an action may have a disproportionate effect.'' Another commenter 
recommended the final rule revise the factor to read ``the degree of 
any reasonably foreseeable and adverse effects from the proposed action 
on communities with environmental justice concerns'' to focus on 
reasonably foreseeable effects.
    CEQ adds the factor in proposed paragraph (d)(2)(ix) related to 
communities with environmental justice concerns in Sec.  
1501.3(d)(2)(vii) in the final rule with modifications. Specifically, 
the final rule revises the factor to revise the phrase ``have 
disproportionate and adverse effects'' to ``adversely affect'' to 
enhance the consistency of this factor with the other intensity 
factors. CEQ notes that the intensity factors inform an agency's 
determination of whether an effect is significant, and the word 
``effect'' is defined to mean reasonably foreseeable effect.
    Finally, CEQ proposed to add a new proposed paragraph (d)(2)(x) to 
include effects upon rights of Tribal Nations that have been reserved 
through treaties, statutes, or Executive orders. CEQ proposed this 
factor because Tribes' ability to exercise these rights often depends 
on the conditions of the resources that support the rights, and 
agencies should consider these reserved rights when determining whether 
effects to such resources are significant. CEQ specifically sought 
comments from Tribes on this proposed addition.
    Multiple commenters, including Tribal government agencies and 
Tribal leaders, supported the addition of proposed paragraph (d)(2)(x), 
but also urged CEQ to specifically address effects on Tribal 
sovereignty, reservations, religious and cultural practices and 
cultural heritage, current cultural practices, and habitat on which 
resources crucial to the exercise of Tribal Nations' reserved rights 
depend. A few commenters recommended the factor include broader 
references when discussing ``rights'' to ensure inclusion of the rights 
of indigenous peoples not denominated as Tribes. A few commenters 
opposed the proposed addition, asserting that it prejudges which 
effects would be significant.
    CEQ adds proposed new paragraph (d)(2)(x) in Sec.  
1501.3(d)(2)(viii) of the final rule, as proposed. The provision 
identifies an important factor that agencies should consider in 
determining whether an effect is significant and will help agencies 
consider rights that have been reserved through treaties, statutes, or 
Executive orders during the NEPA process, without prejudging which 
categories of environmental effects will be most important in any given 
analysis. Regarding the additional considerations that commenters 
suggest that CEQ incorporate into these provisions, CEQ notes that 
paragraphs (d)(2)(ii), (iii), (v), and (vii) capture many of them in 
whole or in part. Because the list of considerations in paragraph 
(d)(2) is not exhaustive, CEQ declines to specify these additional 
terms. Regarding the recommendation to add a reference to rights of 
indigenous peoples in this factor, CEQ does not make this revision 
because this factor addresses the unique and distinctive rights of 
Tribal Nations that have a nation-to-nation relationship with the 
United States.
3. Categorical Exclusions (Sec.  1501.4)
    CEQ proposed revisions to Sec.  1501.4 regarding CEs to clarify 
this provision, and provide agencies new flexibility to establish CEs 
using additional mechanisms outside of their NEPA procedures to promote 
more efficient and transparent development of CEs that may be tailored 
to specific environmental contexts or project types.
    Many commenters expressed general support for the proposed changes 
to Sec.  1501.4. Some of these commenters suggested that the final rule 
go further to encourage the use of CEs. Other commenters advocated for 
additional provisions in the section, such as requiring agencies to 
notify the public of the proposed use of a CE and make all 
documentation on the use of a CE for a specific action available to the 
public. CEQ addresses the specific comments throughout this section and 
in the Phase 2 Response to Comments.
    CEQ intends the changes in the final rule to promote agency use of 
CEs whenever appropriate for a proposed action. The mechanisms in Sec.  
1501.4 as well as Sec.  1507.3 will provide agencies with additional 
flexibility in establishing CEs while ensuring that CEs are 
appropriately substantiated and bounded to ensure they apply to actions 
that normally do not have significant effects. CEQ declines to require 
agencies to provide public notice in advance of using a CE. While 
agencies may choose to do this where they deem appropriate, an across-
the-board requirement would burden agency resources and undermine the 
efficiency of the CE process. Similarly, requiring agencies to publish 
documentation of every CE determination would be overly burdensome. 
Consistent with Sec.  1507.3(c)(8)(i), agencies must identify in their 
NEPA procedures which of their CEs require documentation. Agencies also 
can identify processes or specific CEs in their agency procedures for 
which they will make determinations publicly available where they 
determine this is appropriate. CEQ encourages agencies to notify the 
public and make documentation publicly available for CEs when they 
expect public interest in the determination.
    CEQ proposed changes throughout Sec.  1501.4. First, CEQ proposed 
to revise the first sentence in paragraph (a) to strike the clause 
requiring agencies to identify CEs in their agency NEPA procedures and 
replace it with a clause requiring agencies to establish CEs consistent 
with Sec.  1507.3(c)(8), which requires agencies to establish CEs in 
their NEPA procedures. CEQ proposed this revision because it would more 
fully and accurately reflect the purposes of and requirements for CEs. 
Because paragraph (c) provides mechanisms for agencies to establish CEs 
outside of their NEPA procedures, CEQ makes this change to Sec.  
1501.4(a) in the final rule but adds ``or paragraph (c)'' so that the 
first sentence refers to the various mechanisms for establishing CEs. 
As is reflected in the regulations, CEQ views CEs to be important tools 
to promote efficiency in the NEPA process where agencies have long 
exercised their expertise to identify and substantiate categories of 
actions that normally do not have a significant effect on the human 
environment.
    Second, in the description of CEs in the first sentence of 
paragraph (a), CEQ proposed to add the clause ``individually or in the 
aggregate'' to modify the clause ``categories of actions that normally 
do not have a significant effect on the human environment.'' CEQ 
proposed to add this language to clarify that when establishing a CE, 
an agency must determine that the application of the CE to a single 
action and the repeated collective application to multiple actions 
would not have significant effects on the human environment. CEQ 
proposed this clarification to recognize that agencies often use CEs 
multiple times over many years and for consistency with the reference 
to a ``category of actions'' in the definition of ``categorical 
exclusion'' provided by section 111(1) of NEPA, which highlights the 
manner in which CEs consider an aggregation of individual actions. 42 
U.S.C. 4336e(1).
    CEQ intended the proposed change to have a meaning similar to the 
1978 regulations' definition ``categorical exclusion'' as categories of 
actions that do not ``individually or cumulatively'' have significant 
effects, which the 2020 rule removed stating that the removal was 
consistent with its removal of the term ``cumulative impacts'' from the 
regulations. The Phase 1 rulemaking reinstated cumulative effects to 
the

[[Page 35470]]

definition of ``effects,'' \68\ so the 2020 rule's justification for 
removing the phrase no longer has a basis. However, CEQ proposed to use 
the phrase ``in the aggregate'' rather than ``cumulatively'' to avoid 
potential confusion. Cumulative effects refer to the incremental 
effects of an agency action added to the effects of other past, 
present, and reasonably foreseeable actions. In the context of 
establishing CEs, agencies consider both the effects of a single action 
as well as the aggregation of effects from anticipated multiple actions 
covered by the CE such that the aggregate sum of actions covered by the 
CE does not normally have a significant effect on the human 
environment. As part of this analysis, agencies consider the effects--
direct, indirect, and cumulative--of the individual and aggregated 
actions.
---------------------------------------------------------------------------

    \68\ CEQ, Phase 1 Final Rule, supra note 50, at 23469.
---------------------------------------------------------------------------

    Because the definition of ``effects'' includes cumulative effects, 
CEQ proposed the phrase ``in the aggregate'' to more clearly define 
what agencies must consider in establishing a CE--the full scope of 
direct, indirect, and cumulative effects of the category of action 
covered by the CE. Agencies have flexibility on how to evaluate whether 
the aggregate actions covered by a CE will not ordinarily have 
significant effects and may consider the manner in which the agency's 
extraordinary circumstances may apply to avoid multiple actions taken 
in reliance on the CE having reasonably foreseeable significant effects 
in the aggregate.
    Commenters both supported and opposed the addition of the phrase 
``individually or in the aggregate'' in proposed Sec.  1501.4(a) and 
Sec.  1507.3(c)(8)(ii). Commenters who supported the inclusion of the 
text asserted that it restores an important clarification regarding the 
proper scope of CEs from the 1978 regulations and that it gives meaning 
to the statutory definition of ``categorical exclusion'' in section 
111(1) of NEPA. 42 U.S.C. 4336e(1). Commenters opposed to this phrase 
asserted it is undefined, lacks foundation in the statute, is 
burdensome on agencies, and will require agencies to consider effects 
beyond those that are reasonably foreseeable.
    CEQ disagrees that the phrase ``individually or in the aggregate'' 
lacks foundation in the statute because use of the phrase ``does not 
significantly affect'' in section 111(1) of NEPA indicates it is the 
``category of actions'' that the agency has determined normally would 
not result in significant effects to the environment, not an individual 
action to which the CE would apply. See 42 U.S.C. 4336e(1) (emphasis 
added). CEQ also disagrees that this phrase will add burden to agencies 
because CEQ considers this a clarifying edit consistent with the 
longstanding definition of ``categorical exclusion'' and agency 
practice. Finally, CEQ notes that all effects analyses are bounded by 
reasonable foreseeability, including in the establishment of CEs.
    Some commenters also requested the regulations clarify the 
relationship between the phrase ``individually or in the aggregate'' 
and the definition of cumulative effects. CEQ views these terms as 
related. The term ``effects'' as used in the definition of 
``categorical exclusion'' and throughout the regulations includes 
cumulative effects, which, in turn, refers to the effects of the action 
being analyzed in an environmental document when added to the effects 
of other past, present, and reasonably foreseeable actions. The use of 
``in the aggregate'' in this paragraph refers to the fact that in 
substantiating a CE to determine that a category of actions normally 
does not have significant effects, the agency must consider both the 
effects--including cumulative effects as well as direct and indirect--
of an individual action within that category and of the aggregate of 
the actions that the agency can reasonably foresee will be taken and 
covered by the CE. Because the regulations use the phrase ``in the 
aggregate'' consistent with the ordinary meaning of the phrase, CEQ 
does not consider it necessary to add additional explanatory text.
    A few commenters requested the regulations clarify that an agency 
should ensure that actions covered by a CE will not have a significant 
effect ``individually or in the aggregate'' at the time the agency 
establishes and substantiates the CE. Conversely, another commenter 
asserted considering the aggregate effects of a CE is inappropriate 
when an agency establishes a CE, asserting that an agency should 
consider any aggregate effects when applying the CE to a proposed 
action. CEQ declines to address substantiation of CEs in Sec.  1501.4 
as this issue is addressed in Sec.  1507.3(c)(8)(ii). Further, CEQ 
disagrees that agencies would need to analyze aggregate effects each 
time the agency applies a CE, except to the extent the agency's 
extraordinary circumstances review requires such an analysis. Requiring 
such an analysis each time an agency applies a CE, independent of any 
analysis required as part of the agency's extraordinary circumstances 
review, would undermine the efficiency of CEs. Instead, agencies must 
consider whether a category of actions normally does not have a 
significant effect individually or in the aggregate at the time that 
the agency establishes a CE.
    Some commenters opposed the use of the term ``normally'' in the 
description of a CE in paragraph (a), which CEQ discusses in section 
II.J.2. CEQ retains this term for the reasons discussed in the 2020 
rule, section II.J.2, and the Phase 2 Response to Comments.
    Third, CEQ proposed to revise the end of the first sentence of 
paragraph (a) to add the qualifier, ``unless extraordinary 
circumstances exist that make application of the categorical exclusion 
inappropriate'' with a cross reference to paragraph (b). As discussed 
in section II.J.11, CEQ proposed to add a definition of ``extraordinary 
circumstances.'' CEQ stated in the proposed rule, that these provisions 
are consistent with longstanding practice and recognize that, as the 
definition provided by section 111(1) of NEPA indicates, CEs are a 
mechanism to identify categories of actions that normally do not have 
significant environmental effects. See 42 U.S.C. 4336e(1). 
Extraordinary circumstances serve to identify individual actions whose 
effects exceed those normally associated with that category of action 
and therefore, may not be within the scope of the CE. CEQ did not 
receive comments on this specific proposed change and makes this 
addition to paragraph (a) in the final rule.
    Fourth, CEQ proposed to add a new sentence at the end of paragraph 
(a) to clarify that agencies may establish CEs individually or jointly 
with other agencies. The proposed rule noted that where agencies 
establish CEs jointly, they may use a shared substantiation document 
and list the CE in both agencies' NEPA procedures or identify them 
through another joint document as provided for by Sec.  1501.4(c). CEQ 
proposed this addition to clarify that agencies may use this mechanism 
to establish CEs transparently and with appropriate public process. The 
proposed rule noted that agencies may save administrative time and 
resources by establishing a CE jointly for activities that they 
routinely work on together and where having a CE would create 
efficiency in project implementation.
    Multiple commenters supported the inclusion of this clarification 
in paragraph (a), stating that joint establishment of CEs by agencies 
can help improve efficiency, reduce redundancy, and improve cohesion 
between agencies. On the other hand, one commenter opposed the proposed 
addition asserting that joint CEs will not

[[Page 35471]]

help communities participate fully in the NEPA process. CEQ adds the 
proposed language in Sec.  1501.4(a) in the final rule. The NEPA 
regulations have never prohibited agencies from establishing CEs 
jointly, and the proposed change in paragraph (a) provides clarity to 
agencies and the public that this is an acceptable practice. The 
requirement to substantiate CEs as described in Sec.  1507.3(c)(8), 
including public review and comment, apply to establishment of joint 
CEs in the same manner as CEs established by an individual agency.
    Fifth, CEQ proposed edits to paragraph (b)(1) addressing what 
agencies do when there are extraordinary circumstances for a particular 
action. CEQ proposed to change ``present'' to ``exist'' and clarify the 
standard for when an agency may apply a CE to a proposed action 
notwithstanding the extraordinary circumstances. CEQ proposed to make 
explicit that an agency must conduct an analysis to satisfy the 
requirements of the paragraph. Next, CEQ proposed to change the 
description of the determination that agencies must make from ``there 
are circumstances that lessen the impacts'' to ``the proposed action 
does not in fact have the potential to result in significant effects 
notwithstanding the extraordinary circumstance.'' Then CEQ proposed to 
change ``or other conditions sufficient to avoid significant effects'' 
to ``or the agency modifies the action to address the extraordinary 
circumstance.'' CEQ proposed this standard for consistency with agency 
practice and case law. Additionally, CEQ proposed this change because 
the language in paragraph (b)(1) of 40 CFR 1501.4 (2020) could be 
construed to mean that agencies may mitigate on a case-by-case basis 
extraordinary circumstances that would otherwise have the potential for 
significant effects and thereby apply a CE with no opportunity for 
public review or engagement on such actions. While the 2020 Response to 
Comments sought to distinguish ``circumstances that lessen the 
impacts'' from required mitigation to address significant effects,\69\ 
based on CEQ's discussions with agency representatives and 
stakeholders, the potential for confusion remained. CEQ proposed the 
revised text to make clear that if an extraordinary circumstance 
exists, an agency must make an affirmative determination that there is 
no potential for significant effects in order to apply a CE. If the 
agency cannot make this determination, the agency must either modify 
its proposed action in a way that will address the extraordinary 
circumstance, or prepare an EA or EIS.
---------------------------------------------------------------------------

    \69\ CEQ, Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act Final Rule 
Response to Comments 130 (June 30, 2020) (2020 Response to 
Comments), https://www.regulations.gov/document/CEQ-2019-0003-720629.
---------------------------------------------------------------------------

    Sixth, CEQ proposed to add a sentence to paragraph (b)(1) to 
require agencies to document their determinations in those instances 
where an agency applies a CE notwithstanding extraordinary 
circumstances. While not required, CEQ proposed to encourage agencies 
to publish such documentation to provide transparency to the public of 
an agency determination that there is no potential for significant 
effects. CEQ proposed this sentence in response to feedback from the 
public requesting such transparency.
    Multiple commenters generally supported proposed Sec.  1501.4(b), 
which sets out the process for applying a CE to a proposed action, and 
its subparagraphs addressing consideration of extraordinary 
circumstances. Several commenters opposed the proposed requirement in 
paragraph (b)(1) to prepare a separate analysis as part of the 
extraordinary circumstances review, asserting it will decrease 
efficiency, disincentivize use of CEs, and strain already limited 
agency resources.
    Multiple commenters opposed allowing an agency to apply a CE when 
extraordinary circumstances exist and expressed concerns that this 
provision would allow the use of mitigated CEs. Some of these 
commenters recommended the final rule remove paragraph (b)(1); further 
specify what extraordinary circumstances agencies must consider, such 
as the presence of endangered, threatened, or rare or sensitive 
species; or include ``other protective measures.'' Some commenters 
urged the final rule to require, rather than encourage, publication of 
the CE determinations in paragraph (b)(1). Other commenters urged CEQ 
not to make publication a requirement because it would be burdensome on 
agencies. One commenter who supported proposed paragraph (b)(1) also 
suggested the regulations clarify that the standard to apply a CE to a 
proposed action also includes mitigation commitments to address 
extraordinary circumstances.
    CEQ revises paragraph (b)(1) as proposed with two additional 
clarifying edits. In applying CEs, the evaluation of extraordinary 
circumstances is critical to ensure that a proposed action to which a 
CE may apply would not cause significant effects. However, mere 
presence of an extraordinary circumstance does not mean that the 
proposed action has the potential to result in significant effects. To 
ensure both the efficient and the appropriate use of CEs, CEQ revises 
paragraph (b)(1) to enable agencies to analyze and document that 
analysis to ensure application of the CE is valid. CEQ disagrees that 
requiring agencies to document this analysis is inefficient because 
this provision does not require an agency to prepare documentation of 
every extraordinary circumstance review. Rather, the provision requires 
documentation only when the agency identifies the presence of 
extraordinary circumstances but nevertheless determines that 
application of the CE is appropriate. Documentation in such instances 
is appropriate so that the agency can demonstrate that it adequately 
assessed the extraordinary circumstances and determined that the action 
will nonetheless not have the potential to result in significant 
effects. CEQ declines to require agencies to publish this documentation 
because it could burden agency resources and undermine the efficiency 
of the CE process.
    CEQ has considered the comments on this paragraph related to 
mitigated CEs and modifies the text in the final rule to clarify what 
it means for an agency to modify its action. Specifically, CEQ replaces 
the phrase ``address the extraordinary circumstance'' with the phrase 
``avoid the potential to result in significant effects.'' This change 
clarifies that while an agency may rely on measures that avoid 
potential significant effects, it may not rely on measures to 
compensate for potential significant effects as the basis for relying 
on a CE when extraordinary circumstances are present, and the agency 
has determined that the proposed action has the potential to result in 
significant effects. While CEQ has determined that reliance on 
compensatory mitigation in this provision is inappropriate, it notes 
that other provisions of the regulations, such as the allowance for 
mitigated FONSIs in Sec.  1501.6, promote the use of compensatory 
mitigation to promote efficient environmental reviews and quality 
decision making. CEQ also revises the introductory clause of the last 
sentence from ``In such cases'' to ``in these cases'' to make it clear 
that the documentation requirement applies to both situations--(1) when 
the agency conducts an analysis and determines that the proposed action 
does not in fact have the potential to result in significant effects 
notwithstanding the extraordinary circumstance or (2) the agency 
modifies the action to avoid the potential to result in significant 
effects.

[[Page 35472]]

    Seventh, CEQ proposed to add a new paragraph (c) to provide 
agencies more flexibility to establish CEs outside of their NEPA 
procedures. CEQ proposed this provision to allow agencies to establish 
CEs through a land use plan, a decision document supported by a 
programmatic EIS or EA, or other equivalent planning or programmatic 
decisions. Once established, the proposal would allow agencies to apply 
CEs to future actions addressed in the program or plan, including site-
specific or project-level actions. CEQ proposed this provision because 
it anticipated that expanding the mechanisms through which agencies may 
establish CEs will encourage agencies to conduct programmatic and 
planning reviews, increase the speed with which agencies can establish 
CEs while ensuring public participation and adequate substantiation, 
promote the development of CEs that are tailored to specific contexts, 
geographies, or project-types, and allow decision makers to consider 
the cumulative effects of related actions on a geographic area over a 
longer time frame than agencies generally consider in a review of a 
single action.
    Proposed paragraph (c) would not require agencies to establish CEs 
through this new mechanism, but rather would provide new options for 
agencies to consider. CEQ also noted in the proposed rule that this 
mechanism does not preclude agencies from conducting and relying on 
programmatic analyses in making project-level decisions consistent with 
Sec.  1501.11 in the absence of establishing a CE. Additionally, the 
proposed rule noted that it does not require agencies to conduct a NEPA 
analysis to establish CEs generally, consistent with Sec.  
1507.3(c)(8).
    Numerous commenters expressed support for proposed paragraph (c), 
asserting it will improve flexibility and efficiency. Some commenters 
opposed the proposed provision, expressing concern about public 
engagement. One commenter requested CEQ exclude ``other equivalent 
planning or programmatic decision'' from paragraph (c) asserting that 
CEQ should limit the provision to documents prepared pursuant to NEPA 
to ensure public transparency and early public involvement. Another 
commenter recommended the final rule include an example in paragraph 
(c) to illustrate the appropriateness of creating a CE for restoration 
actions in a planning document, referencing Sec.  1500.3(d)(2)(i) for 
proposed Federal actions with short-term, non-significant, adverse 
effects and long-term beneficial effects, such as restoration projects.
    CEQ adds paragraph (c) with additional text to clarify that the 
phrase ``other equivalent planning or programmatic decision'' requires 
that such decision be supported by an environmental document prepared 
under NEPA. CEQ anticipates that this alternative approach will provide 
agencies with more flexibility on how to identify categories of actions 
that normally will not have significant effects and establish a CE for 
those categories. An environmental document such as a programmatic EIS 
prepared for land use plans or other planning and programmatic 
decisions can provide the analysis necessary to substantiate a new CE 
established by the associated decision document that makes sense in the 
context of the overall program decision or land use plan. For example, 
a land management agency could consider establishing a CE for zero or 
minimal impact resilience-related activities through a land use plan 
and the associated EIS. Enabling an agency to establish a CE through 
this mechanism will reduce duplication of effort by obviating the need 
for the agency to revise its NEPA procedures consistent with Sec.  
1507.3 after completing a programmatic EIS. Agencies also may find it 
efficient to establish a CE through a land use planning process rather 
than undertaking a separate process to establish the CE via agency 
procedures after completion of the land use planning process.
    Eighth, CEQ proposed to add paragraphs (c)(1) through (c)(6) to set 
forth the requirements for the establishment of CEs through the 
mechanism proposed in paragraph (c). In paragraphs (c)(1) and (c)(2), 
CEQ proposed to require agencies to provide CEQ an opportunity to 
review and comment and provide opportunities for public comment. The 
proposed rule noted that agencies may satisfy the requirement for 
notification and comment under paragraph (c)(2) by incorporating the 
proposed CEs into any interagency and public review process that 
involves notice and comment opportunities applicable to the relevant 
programmatic or planning document.
    One commenter requested that paragraph (c)(1) include a requirement 
for CEQ to provide review and comment to agencies within 30 days of the 
receipt of the draft plan, programmatic environmental document, or 
equivalent decision document, consistent with the timeframe included in 
Sec.  1507.3(b)(2). Another commenter asserted that requiring agencies 
to coordinate with CEQ defeats the purpose of having an alternative 
mechanism for establishing CEs outside of an agency's NEPA procedures.
    Some commenters asserted that bundling new CEs with other large 
actions could make it hard for the public to track and result in a lack 
of public participation and potential for abuse. CEQ disagrees that the 
alternative process for establishing CEs will curtail meaningful public 
engagement on proposed CEs and notes that paragraph (c)(2) would 
require notification and an opportunity for public comment. Further, 
programmatic environmental documents are subject to the public and 
governmental engagement requirements in Sec.  1501.9.
    The final rule adds paragraphs (c)(1) and (c)(2) as proposed. CEQ 
declines to include a timeline in the final rule but notes that it will 
strive to provide comments as quickly and efficiently as possible. CEQ 
disagrees that requiring agencies to consult with CEQ defeats the 
purpose of this alternative mechanism. Consultation with CEQ 
facilitates consistency and coordination across the government, which 
can lead to greater efficiency. CEQ also can help ensure that agencies 
are adequately substantiating CEs through this new mechanism.
    In paragraphs (c)(3) and (c)(4), CEQ proposed to include the same 
requirements for agencies to substantiate CEs and provide for 
extraordinary circumstances when they establish CEs under this section 
as when they establish CEs through their agency NEPA procedures 
pursuant to Sec.  1507.3. Specifically, paragraph (c)(3) would require 
agencies to substantiate their determinations that the category of 
actions covered by a CE normally will not result in significant 
effects, individually or in the aggregate. Paragraph (c)(4) would 
require agencies to identify extraordinary circumstances.
    CEQ did not receive comments specific to paragraphs (c)(3) and 
(c)(4) and adds them to the final rule as proposed. CEQ notes that 
agencies have flexibility in how they identify the list of new 
extraordinary circumstances. For example, agencies could rely on their 
list set forth in their NEPA procedures. Or, the agency could identify 
a list specific to the CEs established under paragraph (c). Agencies 
also could do a combination of both. CEQ also notes that while agencies 
would need to satisfy the requirements in paragraphs (c)(3) and (c)(4) 
in a manner consistent with the establishment of CEs under Sec.  
1507.3, agencies could document their compliance with these 
requirements in the relevant programmatic or planning documents.

[[Page 35473]]

    In paragraph (c)(5), CEQ proposed to direct agencies to establish a 
process for determining that a CE applies to a specific action in the 
absence of extraordinary circumstances or determine the CE still 
applies notwithstanding the presence of extraordinary circumstances. 
Finally, in paragraph (c)(6), CEQ proposed to direct agencies to 
maintain a list of all such CEs on their websites, similar to the 
requirement for agencies to publish CEs established in their agency 
NEPA procedures consistent with Sec. Sec.  1507.3(b)(2) and 1507.4(a).
    One commenter asserted that requiring agencies to publish a list of 
all CEs established pursuant paragraph (c) on an agency's website 
defeats the purpose of having an alternative mechanism for establishing 
CEs outside of an agency's NEPA procedures. CEQ adds paragraphs (c)(6) 
as proposed. CEQ disagrees that providing transparency on a website is 
burdensome or will affect the efficiency of the alternative process for 
establishing CEs. Agency websites should clearly link the CEs 
established pursuant to Sec.  1504.1(c) to their underlying 
programmatic or planning documents. Additionally, where they determine 
it is efficient and helpful to do so, agencies may incorporate CEs 
established through these mechanisms into their agency NEPA procedures 
during a subsequent revision. Irrespective of whether agencies do this, 
CEQ encourages agencies to list all agency CEs in one location, 
regardless of how the agency established the CE, so that the public can 
easily access the full list of an agency's CEs.
    Ninth, CEQ proposed new paragraphs (d) and (d)(1) through (d)(4) to 
identify a list of examples of features agencies may want to consider 
including when establishing CEs, regardless of what mechanism they use 
to do so. In paragraph (d)(1), CEQ proposed to specifically allow for 
CEs that cover specific geographic areas or areas that share common 
characteristics, such as a specific habitat type for a given species. 
CEQ did not receive any comments specific to this proposal and adds 
paragraphs (d) and (d)(1) to the final rule.
    To promote experimentation and evaluation, CEQ proposed in 
paragraph (d)(2) to indicate that agencies may establish CEs for 
limited durations. CEQ did not receive any comments specific to this 
proposal and adds paragraph (d)(2) to the final rule. Agencies may 
establish CEs for limited durations when doing so will enable them to 
narrow the scope of analysis necessary to substantiate that a class of 
activities normally will not have a significant environmental effect 
where uncertainty exists about changes to the environment that may 
occur later in time that could affect the analysis or where an agency 
anticipates that the frequency of actions covered by a CE may increase 
in the future. As with all CEs, agencies should review their continued 
validity periodically, consistent with the CE review timeframe in Sec.  
1507.3(c)(9). Once the limited duration threshold is met, agencies may 
either consider the CE expired, conduct additional analysis to create a 
permanent CE, or reissue the CE for a new period if they can adequately 
substantiate the reissued CE.
    CEQ proposed in paragraph (d)(3) to provide that a CE may include 
mitigation measures to address potential significant effects. The 
proposed rule explained that a CE that includes mitigation is different 
than an agency modifying an action to avoid an extraordinary 
circumstance that would otherwise require preparation of an EA or EIS.
    Numerous commenters interpreted proposed paragraph (d)(3) to allow 
``mitigated CEs,'' and commenters expressed both support and opposition 
for the proposed provision. Supportive commenters asserted that 
mitigated CEs can provide efficiencies to agencies. Commenters opposed 
to the provision expressed concern that this would allow agencies to 
provide compensatory mitigation for impacts of CEs and asserted the 
provision violates a bedrock principle of NEPA that an agency may not 
weigh beneficial effects against adverse effects to determine that an 
action's effects on a whole are not significant. Some commenters 
objected to the proposal that mitigation included as part of a CE must 
be legally binding, enforceable, and subject to monitoring.
    CEQ includes paragraph (d)(3) as proposed. This provision provides 
for a CE that includes mitigation measures integrated into the category 
of action itself, which agencies would adopt through a public comment 
process, and does not enable mitigation that is identified after the 
fact or on a case-by-case basis. Where an agency establishes a CE for a 
category of activities that include mitigation measures, agencies would 
implement the activities covered by the CE as well as the mitigation 
incorporated into those activities as described in the text of CE. This 
provision would enable agencies to incorporate mitigation as part of 
the category of action covered by a CE. The potential to integrate 
compensatory mitigation into a CE does not authorize weighing 
beneficial and adverse effects, just as agencies may not weigh 
beneficial effects against adverse effects to determine significance of 
a proposed action. Rather, a CE may incorporate compensatory mitigation 
requirements as part of the action to ensure that an environmental 
effect is not significant. For example, in appropriate circumstances an 
agency might conclude that a category of activity that results in 
degradation of five acres of habitat will not ordinarily have 
significant effects where five acres of equivalent habitat are 
effectively restored or conserved elsewhere within that same geographic 
location. As another example, a CE might cover a category of activities 
that result in releasing a certain volume of sediment into a waterway 
if measures were taken to reduce sediment into the waterway from other 
sources. In establishing a CE that incorporates a mitigation measure, 
the agency would need to determine that implementation of the 
mitigation measure will mean that the category of activities will not 
normally have a significant effect. Where an agency establishes a CE 
with a mitigation requirement, the agency would need to include such 
mitigation in their proposed actions in order for the CE to apply.
    In paragraph (d)(4), CEQ proposed to provide that agencies can 
include criteria for when a CE might expire such that, if such criteria 
occur, the agency could no longer apply that CE. For example, an agency 
could establish a CE for certain activities up to a threshold, such as 
a specified number of acres or occurrences. Once the applications of 
the CE met the threshold, the agency could no longer use the CE. 
Similarly, an agency might set an expiration date or threshold where 
the agency can substantiate that a category of activities will not have 
a significant effect up to a certain number of applications of the CE, 
but beyond that point there is uncertainty or analytic difficulty 
determining whether application of the CE would have significant 
effects. Adopting CEs of this type may significantly reduce the 
difficulty substantiating a CE and therefore, may promote more 
efficient and appropriate establishment of CEs in certain 
circumstances.
    Some commenters requested that the criteria to cause a CE to expire 
be mandatory while another commenter asserted the expiration criteria 
would undermine the use of the CEs. CEQ includes paragraph (d)(4) as 
proposed in the final rule and notes that this provision is merely an 
example of a type of feature that can be incorporated into a CE. In 
establishing the CE, agencies

[[Page 35474]]

would determine whether the criteria were mandatory.
    Finally, CEQ proposed to add paragraph (e) to implement the process 
for adoption and use of another agency's CE consistent with section 109 
of NEPA. 42 U.S.C. 4336c. As discussed in section II.I.3, CEQ proposed 
to strike the provision that would allow an agency to establish a 
process in its agency NEPA procedures to apply a CE listed in another 
agency's NEPA procedures in 40 CFR 1507.3(f)(5) (2020) and replace it 
with this provision.
    Numerous commenters generally opposed the concept of adopting and 
using another agency's CE. A few commenters asserted that such an 
allowance could be ``disastrous'' because it allows agencies to skip 
full assessment of the potential environmental and socioeconomic 
impacts of the proposed action required by NEPA, and it limits public 
engagement.
    CEQ includes paragraph (e) in the final rule because it implements 
the provisions of section 109 of NEPA, which allows agencies to adopt 
and apply the CEs of other agencies. 42 U.S.C. 4336c. CEQ notes that 
the statutory provision only allows for agency adoption and use of CEs 
established administratively by the agency, including those that 
Congress directs agencies to establish administratively, but does not 
permit adoption of CEs directly created by statute, for which an agency 
has not evaluated whether the category of activities that fall within 
the CE will not normally have significant effects. While CEQ encourages 
agencies to include legislative CEs established by statute in their 
NEPA procedures to provide transparency, they are not ``established'' 
by the agency, but rather by Congress. Therefore, this provision does 
not apply to legislative CEs.
    In paragraph (e)(1), CEQ proposed to require the adopting agency to 
identify the proposed action or category of proposed actions that falls 
within the CE. CEQ did not receive comments on this proposed paragraph 
and adds it to the final rule as proposed.
    In paragraph (e)(2), CEQ proposed to require the adopting agency to 
consult with the agency that established the CE, consistent with the 
requirement of section 109(2) of NEPA that an agency consult with ``the 
agency that established the categorical exclusion.'' 42 U.S.C. 
4336c(2). While some commenters opposed the consultation requirements 
included in paragraph (e)(2), it is consistent with section 109(2) of 
NEPA. Therefore, CEQ adds paragraph (e)(2) in the final rule with 
revisions to clarify that ``the application'' refers to ``the proposed 
action or category of proposed actions to which the agency intends to 
apply'' the adopted CE. Consultation with the agency that established 
the CE ensures that the CE is appropriate for the proposed action or 
categories of action that the adopting agency is contemplating as well 
as to ensure the adopting agency follows any process contemplated in 
the establishing agency's procedures. Agencies structure their CEs in a 
variety of manners, and it is essential that the adopting agency 
comport with the establishing agency's process necessary for 
appropriate application of the CE. For example, some agencies structure 
their CEs to have a list of conditions or factors to consider in order 
to apply the CE. Other agencies require documentation for certain CEs. 
These conditions would apply to the adopting agency as well. In 
contrast, procedures internal to the establishing agency and unrelated 
to proper application of the CE, such as protocols for seeking legal 
review or briefing agency leadership, would not.
    CEQ proposed in paragraph (e)(3) to require the adopting agency to 
evaluate the proposed action for extraordinary circumstances and to 
incorporate the process for documenting use of the CE when 
extraordinary circumstances are present but application of the CE is 
still appropriate consistent with Sec.  1504.1(b)(1). One commenter 
requested additional clarity on which agency's extraordinary 
circumstances the adopting agency needs to consider while another 
commenter asserted both agencies' extraordinary circumstances should 
apply. Another commenter asserted that section 109 of NEPA does not 
require the extraordinary circumstances review included in paragraph 
(e)(3), and suggested the final rule include this in paragraph (e)(1). 
The commenter further asserted that the cross-reference to Sec.  
1501.4(b) in paragraph (e)(3) presents problems of action-specific 
application.
    In the final rule, CEQ swaps proposed paragraphs (e)(3) and (e)(4) 
to better reflect the order in which these activities occur. CEQ 
includes proposed paragraph (e)(3) at Sec.  1501.4(e)(4), adds an 
introductory clause, ``[i]n applying the adopted categorical exclusion 
to a proposed action,'' and removes reference to a ``category of 
proposed actions'' since consideration of extraordinary circumstances 
would come at the stage of application and evaluation of a particular 
action, not at the adoption stage, because the purpose of assessing for 
extraordinary circumstances is to determine whether a particular action 
normally covered by a CE requires preparation of an EA or EIS.
    CEQ declines to specify which agency's extraordinary circumstances 
apply in this paragraph and instead adds language to Sec.  1501.4(e)(3) 
(proposed paragraph (e)(4)) to require agencies to explain the process 
the agency will use to evaluate for extraordinary circumstances. When 
the agencies consult regarding the appropriateness of the CE consistent 
with paragraph (e)(2), the agencies should discuss how the adopting 
agency will review for extraordinary circumstances (e.g., whether the 
adopting agency will apply the establishing agency's extraordinary 
circumstances exclusively or both agencies' provisions), taking into 
account how each agency's NEPA procedures define and require 
consideration of extraordinary circumstances. The adopting agency 
should then explain how it will address extraordinary circumstances in 
its notification under Sec.  1501.4(e)(4). CEQ expects that agencies 
will follow the extraordinary circumstances process set forth in the 
NEPA procedures containing the CE, but may determine it is appropriate 
to also consider the extraordinary circumstances process in their own 
procedures because, for example, their extraordinary circumstances 
address agency-specific considerations.
    In proposed paragraph (e)(4), CEQ proposed to require the adopting 
agency to provide public notice of the CE it plans to use for its 
proposed action or category of proposed actions. Some commenters 
asserted the procedural requirements under paragraph (e)(4) are 
unnecessary and could make the process more difficult. One commenter 
requested the regulations clarify that public notice is not intended 
for each individual project using the other agency's CE, but rather 
when one agency decides to use another agency's CE. Some commenters 
requested the final rule require agencies to accept public comment on 
the notice. Conversely, a few commenters expressed concern that the 
requirement to provide notice contemplates the potential for pre-
adoption public comment and necessitates formal comment. These latter 
commenters requested CEQ clarify that formal public comment and agency 
response are not required for the notice.
    In the final rule, CEQ adds proposed paragraph (e)(4) at Sec.  
1501.4(e)(3) because section 109(3) of NEPA requires public notice of 
CE adoption. 42 U.S.C. 4336c(3). In the final rule text, CEQ uses 
``public notification'' instead of ``public

[[Page 35475]]

notice'' for consistency with use of ``notification'' throughout the 
rule. CEQ changes ``use'' to ``is adopting'' to clarify that this 
notice is about adoption of the CE for a proposed action or category of 
actions, not the application of the adopted CE to a particular proposed 
action. CEQ replaces ``for'' with ``including a brief description of'' 
before ``the proposed action or category of proposed actions'' and adds 
the clause ``to which the agency intends to apply the adopted 
categorical exclusion'' to further clarify the purpose of the notice. 
Then, as discussed earlier in this section, the final rule requires 
that the notice specify the process for consideration of extraordinary 
circumstances. CEQ notes that several agencies have already 
successfully adopted other agencies' CEs and provided such notice since 
the NEPA amendments were enacted.\70\ CEQ declines to add a requirement 
to this paragraph to require agencies to seek comment on the adoption. 
While CEQ encourages agencies to do so in appropriate cases, such as 
when there is community interest in the action, the statute does not 
require agencies to seek public comment on the adoption and use of 
another agency's CE. Finally, CEQ adds a requirement to include a brief 
description of the consultation process required by Sec.  1501.4(c)(2) 
to demonstrate that this process occurred.
---------------------------------------------------------------------------

    \70\ See, e.g., U.S. Dep't of Com., Adoption of Energy 
Categorical Exclusions under the National Environmental Policy Act, 
88 FR 64884 (Sept. 20, 2023); U.S. Dep't of Transp., Notice of 
Adoption of Electric Vehicle Charging Stations Categorical Exclusion 
under the National Environmental Policy Act, 88 FR 64972 (Sept. 20, 
2023).
---------------------------------------------------------------------------

    Lastly, in paragraph (e)(5), CEQ proposed to require the adopting 
agency to publish the documentation of the application of the CE. Some 
commenters opposed this proposed requirement, asserting it is not 
required by NEPA and differs from the section 109(4) requirement to 
document adoption of the CE, and that the requirement will only delay 
projects that clearly qualify for use of a CE. 42 U.S.C. 4336c(4). 
Other commenters supported the documentation requirement and requested 
that paragraph (e)(5) require agencies to publish decision documents.
    CEQ adds Sec.  1501.4(e)(5) in the final rule with the addition of 
``adopted'' to modify ``categorical exclusion'' for clarity and 
consistency with Sec.  1501.4(c)(3) and (c)(4). Paragraph (e)(5) 
implements sections 109(3) and 109(4) of NEPA and reflects CEQ's 
understanding that section 109(4) of NEPA describes a step that is 
distinct from and occurs later than the step described in section 
109(3). See 42 U.S.C. 4336c(3), (4). Section 109(3) requires agencies 
to ``identify to the public the categorical exclusion that the agency 
plans to use for its proposed actions,'' while section 109(4) requires 
an agency to ``document adoption of the categorical exclusion.'' CEQ 
reads these provisions together to be consistent with requiring both 
notice of the adopting agency's adoption, which would describe the 
agency's intended use, as well as actual application of the adopted CE 
to proposed actions. It also furthers the purposes of NEPA to inform 
the public. Additionally, providing transparency about how agencies are 
using the adopted CEs will help allay commenters' concerns about this 
provision because they will be made aware of what CEs agencies are 
adopting and how they are using them. Therefore, agencies must prepare 
such documentation each time they apply the CE to a proposed action. 
Paragraph (e)(5) requires agencies to publish this determination that 
the application of the CE is appropriate for the proposed action, and 
that there are no extraordinary circumstances requiring preparation of 
an EA or EIS, including the analysis required by Sec.  1501.4(b)(1) if 
the agency determines that there is no potential for significant 
effects notwithstanding those extraordinary circumstances. CEQ notes 
that use of the defined term ``publish'' in Sec.  1501.4(e)(5) provides 
agencies with discretion to determine the appropriate manner in which 
to publish the documentation and that Sec.  1501.4(e)(5) does not 
require agencies to publish any pre-decisional or deliberative 
materials the agencies may use to support a determination of the 
applicability of the adopted CE.
    When an agency is adopting one or more CEs that it plans to use for 
one or more categories of actions, it may publish a single notice of 
the adoption under Sec.  1501.4(e)(3), consistent with section 109(3) 
of NEPA. See 42 U.S.C. 4336c(3). However, when the agency then applies 
the adopted CE to a specific action, it must document that particular 
use of the CE to satisfy section 109(4) of NEPA, as reflected in Sec.  
1501.4(e)(4) and (5). See 42 U.S.C. 4336c(4). Finally, agencies must 
publish the documentation to provide transparency to the public 
consistent with section 109(3) and (4) of NEPA.
    If an adopting agency anticipates long-term use of an adopted CE, 
CEQ encourages agencies to establish the CE either in their own 
procedures or through the process set forth in Sec.  1501.4(c). Section 
1501.4(e) can serve as an important bridge when agencies are 
implementing new programs where they have not yet established relevant 
CEs or when existing programs begin to undertake new categories of 
actions but where other agencies have experience with similar actions 
and have established a CE for those actions. In these circumstances, 
the agency can immediately begin to implement the new programs or 
activities after adoption of another agency's CE for similar actions 
without the need to first develop its own CE to cover them.
    CEQ notes that section 109 of NEPA does not provide that an agency 
can modify the CE it is adopting. 42 U.S.C. 4336c. Therefore, agencies 
must adopt a CE as established and cannot modify the text of the 
adopted CE. However, in the public notification required by Sec.  
1501.4(e)(3), agencies must describe the action or category of actions 
to which they intend to apply the adopted CE and the action or category 
of actions for which the CE is adopted may be narrower in scope than 
the CE might otherwise encompass. If an agency later seeks to apply the 
adopted CE to a different category of actions than those identified in 
the prior adoption notice, the agency must further consult with the 
establishing agency and provide new public notification consistent with 
Sec.  1501.4(e). If the agency publishes a consolidated list of CEs on 
its website, as CEQ recommends, the adopting agency should include 
identification of the action or category of actions for which it has 
adopted the CE with the list. If an adopting agency would prefer to 
narrow or otherwise modify the text of the adopted CE, it should 
instead substantiate and establish a new CE in its agency NEPA 
procedures.
4. Environmental Assessments (Sec.  1501.5)
    CEQ proposed to revise Sec.  1501.5 to make it consistent with 
section 106(b)(2) of NEPA, which addresses when an agency must prepare 
an EA, and section 107(e)(2) of NEPA, which address EA page limits. 42 
U.S.C. 4336(b)(2), 4336a(e)(2). CEQ also proposed to revise Sec.  
1501.5 to provide greater clarity to agencies on the requirements that 
apply to the preparation of EAs and codify agency practice. CEQ 
proposed edits to address what agencies must discuss in an EA, how 
agencies should consider public comments they receive on draft EAs, 
what page limits apply to EAs, and what other requirements in the CEQ 
regulations agencies should apply to EAs.
    First, regarding the contents of an EA, CEQ proposed to split 
paragraph (c)(2) of 40 CFR 1501.5 (2020), requiring an EA to briefly 
discuss the purpose and need for the proposed action, alternatives, and 
effects, into paragraphs

[[Page 35476]]

(c)(2)(i) through (iii) to improve readability and provide a clearly 
defined list of requirements for EAs. CEQ proposed this formatting 
change to make it easier for the public and agencies to ascertain 
whether an EA includes the necessary contents. For example, when an 
agency develops an EA for a proposal involving unresolved conflicts 
concerning alternative uses of available resources, section 102(2)(H) 
of NEPA requires an analysis of alternatives, which will generally 
require analysis of one or more reasonable alternatives, in addition to 
a proposed action and no action alternative. See 42 U.S.C. 4332(2)(H). 
CEQ did not receive specific comments on these proposed changes and 
makes them in the final rule.
    Second, CEQ proposed to move the requirement for EAs to list the 
agencies and persons consulted in the development of the EA from 
paragraph (c)(2) of 40 CFR 1501.5 (2020) into its own paragraph at 
Sec.  1501.5(c)(3). CEQ also proposed to clarify the term ``agencies'' 
in this paragraph by specifying that the EA should list the Federal 
agencies and State, Tribal, and local governments and agencies 
consulted. CEQ did not receive specific comments on these proposed 
changes and makes them in the final rule to improve readability and 
improve clarity.
    Third, CEQ proposed to add a new paragraph at Sec.  1501.5(c)(4) to 
require each EA to include a unique identification number that can be 
used for tracking purposes, which the agency would then carry forward 
to all other documents related to the environmental review of the 
action, including the FONSI. As discussed in section II.D.4, CEQ 
proposed a comparable provision for EISs in Sec.  1502.4(e)(10). CEQ 
included this proposal because identification numbers can help the 
public and agencies track the progress of an EA for a specific action 
as it moves through the NEPA process and may allow for more efficient 
and effective use of technology such as databases.
    Many commenters expressed support for the addition of these 
requirements. Commenters agreed with CEQ's proposal that having a 
consistent reference point to facilitate public and agency engagement 
would increase transparency and accessibility and improve the public's 
ability to track agency reviews and decision making. Other supportive 
commenters indicated that the use of unique identification numbers 
would or should promote the use of technology, such as databases by 
Federal agencies, for tracking purposes and some commenters encouraged 
CEQ to require agencies to use technology and databases. Commenters 
also suggested that the final rule provide additional information such 
as standardizing the number format or specifying which documents 
require the numbering. Commenters that raised concern about the 
requirement suggested that without a requirement for electronic 
tracking systems, the requirement is premature and burdensome.
    In this final rule, CEQ is retaining the proposed text and, in 
response to comments, adding a clause to also require use of the 
identification numbers in any agency databases or tracking systems. 
Identification numbers can help both the public and the agencies track 
the progress of an action as it moves through the NEPA process from 
initiation to final decision. The use of identification numbers will 
increase transparency and accountability to the public when a proposed 
action is tiered from an existing analysis or when an agency adopts 
another agency's NEPA analysis to support its own decision making. In 
addition to the Permitting Dashboard, many agencies already have 
internal or external databases and tracking systems for their 
environmental review documents.\71\ While the proposed requirement 
would likely result in agencies using these tracking numbers in their 
systems, CEQ considers it important to add text to the final rule to 
emphasize their use as agencies continue to develop new ways to provide 
transparency and improve efficiency in their processes.
---------------------------------------------------------------------------

    \71\ See, e.g., U.S. Forest Serv. Schedule of Proposed Actions, 
https://www.fs.usda.gov/sopa/index.php.
---------------------------------------------------------------------------

    CEQ agrees with commenters that additional information will be 
needed for agencies to implement this provision. For example, there is 
the question whether to have a government-wide system assign the unique 
identification number, to use a standardized numbering format, or 
whether agencies will develop their own format. However, CEQ considers 
these questions best answered through instructions to agencies, which 
CEQ can revise or reissue as needed, especially given the speed at 
which technology advances and changes. CEQ intends to develop such 
instructions following issuance of this final rule.
    Fourth, to reflect current agency practice and provide the public 
with a clearer understanding about potential public participation 
opportunities with respect to EAs, CEQ proposed to add a new paragraph 
(e) that would provide that if an agency chooses to publish a draft EA, 
it must invite public comment on the draft and consider those comments 
when preparing a final EA.
    Numerous commenters expressed support for this proposed change. 
Some commenters recommend the final rule go further to require public 
comment on all EAs, with at least one commenter suggesting a 30-day 
minimum comment period. Another commenter requested the regulations 
require agencies to respond to comments on an EA and publish the 
comments on a website, similar to the requirements for EISs.
    Some commenters opposed the proposed change, asserting that it 
creates the perception that publication of a draft EA for public 
comment should be the default practice when in fact, agencies have 
discretion not to do this. They also requested CEQ explicitly state in 
the rule and preamble that there is no obligation for agencies to 
publish a draft EA for comment. Other commenters emphasized discretion, 
stating that because agencies already have discretion to prepare a 
draft EA, they should have discretion on whether to invite public 
comment on it. The commenters also expressed concern that proposed 
Sec.  1501.5(e) removes agency discretion on how to manage EAs and 
could prolong the development of EAs. Some commenters asserted the 
language on draft EAs contradicts case law, hinders the efficiency of 
the EA process, and could disincentivize agencies from publishing draft 
EAs.
    CEQ considered these comments and includes paragraph (e) as 
proposed. CEQ considers this approach to strike the right balance 
between agency discretion and ensuring that agencies consider public 
comments when they choose to prepare both a draft and final EA. As the 
proposed rule articulated, this provision reflects the fact that one of 
the primary purposes for which agencies choose to prepare draft EAs is 
to facilitate public participation. Codifying this practice enhances 
the public's understanding of the NEPA process and meaningful public 
engagement and does not restrict agency discretion over whether to 
choose to prepare a draft EA for public comment.
    CEQ declines to mandate that all EAs be made available for comment 
because agencies appropriately have flexibility to determine what level 
of engagement is appropriate for an EA given the specific circumstances 
of a proposed action, consistent with Sec.  1501.5(f). However, in 
developing EAs, agencies must involve the public, State, Tribal, and 
local governments, relevant agencies, and any applicants, to the extent 
practicable, in accordance with Sec.  1501.5(f). CEQ also declines to 
require agencies to respond to comments and

[[Page 35477]]

publish public comments on a website. Doing so would unduly limit the 
discretion of agencies to tailor the public engagement process for EAs 
to the specific circumstances of a proposed action, which could include 
responding to comments or publishing them on a website though the 
regulations do not require it. Adding such requirements instead of 
leaving it to agency discretion could disincentivize agencies from 
publishing draft EAs due to concerns about the burden of responding to 
voluminous comments.
    Fifth, CEQ proposed to redesignate paragraphs (e) and (f) of 40 CFR 
1501.5 (2020) as Sec.  1501.5(f) and (g) respectively. CEQ makes these 
changes in the final rule.
    Sixth, CEQ proposed to revise paragraph (g) addressing page limits 
to dispense with the requirement for senior agency official approval to 
exceed 75 pages, not including any citations or appendices, for 
consistency with section 107(e)(2) of NEPA. 42 U.S.C. 4336a(e)(2). CEQ 
did not receive any comments on this proposed change and makes this 
change in the final rule.
    Seventh, CEQ proposed to add paragraph (h) to clarify that agencies 
may reevaluate or supplement an EA if a major Federal action remains to 
occur and the agency considers it appropriate to do so. Proposed 
paragraph (h) also provided that agencies may reevaluate an EA or 
otherwise document a finding that changes to the proposed action or new 
circumstances or information relevant to environmental concerns are not 
substantial, or the underlying assumptions of the analysis remain 
valid. CEQ proposed to add this language to clarify that an agency may 
apply the provisions at Sec.  1502.9 regarding supplemental EISs to a 
supplemental EA to improve efficiency and effectiveness.
    A few commenters expressed that supplemental EAs should consider 
whether the effects analysis still supports a FONSI rather than merely 
addressing underlying assumptions. Some commenters interpreted the 
supplementation and reevaluation language to allow an agency to change 
its finding after it issued the FONSI.
    In the final rule, CEQ includes Sec.  1501.5(h) to address 
supplementation and reevaluation, but revises it from the proposal to 
address concerns raised by the commenters about potential confusion. 
The final rule divides supplementation and revaluation into 
subparagraphs and incorporates the same supplementation standard as 
Sec.  1502.9. Paragraph (h)(1) provides that agencies ``should'' 
supplement EAs rather than ``may'' as proposed. CEQ uses ``should'' in 
the final rule because there may be instances where an agency 
determines that supplementation is appropriate because the changes to 
the proposed action or new information indicate the potential for 
significant effects, and in such instances, agencies should supplement 
their analysis if an action remains to occur and is therefore 
incomplete or ongoing. As discussed in section II.D.8, CEQ replaces 
``remains to occur'' with ``incomplete or ongoing'' to more clearly 
describe the standard for supplementation, and CEQ uses this same 
phrasing in Sec.  1501.5(h)(1).
    In Sec.  1501.5(h)(1)(i) and (ii), the final rule includes the same 
criteria for supplementation as in Sec.  1502.9(d)(i) and (ii) with an 
additional clause at the end of (h)(ii) to clarify the meaning in the 
case of EAs. CEQ includes ``to determine whether to prepare a finding 
of no significant impact or an environmental impact statement'' at the 
end of paragraph (h)(ii) to clarify what ``that bear on the analysis'' 
means in the context of an EA. After considering the comments, CEQ 
determined that it should not create a different supplementation 
standard for EAs from EISs since the purpose of supplementation is to 
address circumstances where the analysis upon which the agency based 
its decision has changed and there is potential for new significant 
effects. Aligning the standards for EISs and EAs will also reduce the 
complexity of the NEPA regulations and the environmental review 
process.
    To further align this provision with Sec.  1502.9, CEQ adds in 
Sec.  1501.5(h)(2) the same text in Sec.  1502.9 to state that agencies 
may prepare supplements when the agency determines the purposes of NEPA 
will be furthered in doing so. CEQ includes this paragraph for 
consistency with EISs and to make clear that agencies have such 
discretion.
    Two commenters requested CEQ revise paragraph (h) to clarify that 
new circumstances or information in the absence of remaining 
discretionary approval involving a major Federal action do not trigger 
a requirement to reevaluate or supplement an EA. The commenters stated 
the proposed text could be interpreted to suggest that agencies are 
obligated to reevaluate an EA whenever new circumstances or information 
arise. While the proposed qualifier that ``an action remains to 
occur,'' would address the commenters' concerns, as noted in this 
section, the final rule clarifies that ``remains to occur'' means when 
an action is incomplete or ongoing, which is consistent with Sec.  
1502.9 as well as longstanding case law that makes clear that there 
must be an incomplete or ongoing action in order for reevaluation or 
supplementation to be necessary.
    Some commenters expressed that paragraph (h) would result in the 
public and project sponsor not having certainty on the whole of the 
administrative record. These commenters requested the regulations 
require an agency to rescind the FONSI until a new one is reached; 
another commenter similarly requested CEQ add a paragraph on rescission 
of FONSIs. CEQ declines to require agencies to rescind a FONSI while a 
reevaluation or supplemental EA is ongoing because these processes are 
intended to inform whether a FONSI remains valid. If an agency prepares 
a supplemental EA, it will determine whether it is necessary to revise 
or issue a new FONSI or whether the existing FONSI remains valid based 
on the outcome of the supplemental analysis.
    In the final rule, CEQ addresses reevaluation in its own paragraph, 
consistent with Sec.  1502.9, by adding Sec.  1501.5(i) to provide that 
an agency may use a reevaluation to document its consideration of 
changes to the proposed action or new information and its determination 
that supplementation is not required. For example, a reevaluation can 
be a short memo describing a change in project design that briefly 
explains why that change does not change the analysis conducted in the 
EA in a manner that warrants supplementation.
    Finally, CEQ proposed to clarify which provisions applicable to 
EISs agencies should or may apply to EAs. CEQ proposed to replace 
paragraph (g) of 40 CFR 1501.5 (2020), listing the provisions for 
incomplete or unavailable information, methodology and scientific 
accuracy, and environmental review and consultation requirements, with 
proposed new paragraphs (i) and (j). CEQ proposed in paragraph (i) to 
clarify that agencies generally should apply the provisions of Sec.  
1502.21 regarding incomplete or unavailable information and Sec.  
1502.23 regarding scientific accuracy. CEQ proposed to revise these 
from ``may apply'' to ``should apply'' because CEQ considers it 
important to disclose where information is incomplete or unavailable 
and ensure scientific accuracy for all levels of NEPA review, not just 
EISs.
    CEQ proposed in paragraph (j) that agencies may apply the other 
provisions of parts 1502 and 1503 as appropriate to improve efficiency 
and effectiveness of EAs. The proposed list included example provisions 
where this might be the case--scoping (Sec.  1502.4), cost-benefit 
analysis (Sec.  1502.22), environmental review and consultation

[[Page 35478]]

requirements (Sec.  1502.24), and response to comments (Sec.  1503.4).
    Various commenters asked for clarity regarding proposed Sec. Sec.  
1501.5(i) and (j), expressing confusion on the difference between 
``generally should apply'' and ``may apply.'' Some commenters requested 
the final rule require application of Sec. Sec.  1502.4, 1502.21, 
1502.22, 1502.23, 1502.24, and 1503.4 to EAs.
    In the final rule, CEQ adds proposed paragraph (i) at Sec.  
1501.5(j) but only references Sec.  1502.21 regarding incomplete and 
unavailable information because CEQ has moved 40 CFR 1502.23 (2020), 
which is applicable to environmental documents, including EAs, to Sec.  
1506.6 as discussed in sections II.D.18 and II.H.4. CEQ retains 
``generally should'' in the final rule. While CEQ encourages agencies 
to follow Sec.  1502.21, CEQ retains the ``generally'' qualifier to 
acknowledge that there may be some circumstances where the section does 
not or should not apply. Additionally, because EAs can include 
significant effects that an agency mitigates to reach a FONSI, it is 
important that agencies apply Sec.  1502.21 in such cases. CEQ also 
adds proposed paragraph (j) at Sec.  1501.5(k), consistent with the 
proposal, to encourage agencies to apply the provisions of parts 1502 
and 1503 where it will improve the efficiency and effectiveness of an 
EA.
    Some commenters provided general comments on EAs. Some commenters 
requested the final rule add more requirements to align with EISs, 
including requiring agencies to consider the same scope of effects as 
those considered in an EIS; to provide decision makers with a summary 
and comparison of effects; and to consider alternatives to address 
adverse environmental effects. Other commenters argued generally that 
the proposed changes to Sec.  1501.5 would result in EAs looking more 
like EISs, which is contrary to goal of an efficient process.
    CEQ declines to make additional changes to Sec.  1501.5. As 
discussed in this section, CEQ concluded that Sec.  1501.5 strikes the 
right balance to ensure agencies preparing an EA conduct an appropriate 
and efficient review without imposing unnecessary requirements that 
would mirror an EIS or result in a less efficient process.
5. Findings of No Significant Impact (Sec.  1501.6)
    CEQ proposed two revisions to Sec.  1501.6 on findings of no 
significant impact (FONSIs) to clarify the 2020 rule's codification of 
the longstanding agency practice of relying on mitigated FONSIs in 
circumstances where the agency incorporates mitigation into the action 
to reduce its effects below significance. Mitigated FONSIs are an 
important efficiency tool for NEPA compliance because they expand the 
circumstances in which an agency may prepare an EA and reach a FONSI, 
rather than preparing an EIS, consistent with the requirements of NEPA.
    CEQ proposed to revise paragraph (a), which provides that an agency 
must prepare a FONSI if it determines, based on an EA, not to prepare 
an EIS because the action will not have significant effects. At the end 
of paragraph (a), CEQ proposed to clarify that agencies can prepare a 
mitigated FONSI if the action will include mitigation to avoid the 
significant effects that would otherwise occur or minimize or 
compensate for them to the point that the effects are not significant. 
The proposed rule noted that so long as the agency can conclude that 
effects will be insignificant in light of mitigation, the agency can 
issue a mitigated FONSI. The proposed rule noted this change improved 
consistency with the language in Sec.  1501.6(c) and aligns with CEQ's 
guidance on appropriate use of mitigation, monitoring, and mitigated 
FONSIs.\72\
---------------------------------------------------------------------------

    \72\ CEQ, Mitigation Guidance, supra note 10.
---------------------------------------------------------------------------

    Numerous commenters supported proposed Sec.  1501.6(a), viewing the 
proposed changes as consistent with agency practice and longstanding 
CEQ guidance as well as promoting efficiency in the NEPA process. In 
contrast, multiple commenters opposed the proposed changes and raised 
concerns that use of mitigated FONSIs would reduce opportunities for 
public participation and allow agencies to trade off different kinds of 
environmental effects to rely on a net benefit outcome to arrive at a 
FONSI.
    In the final rule, CEQ revises paragraph (a) with additional, non-
substantive edits for clarity, including subdividing paragraph (a) into 
subparagraphs. In paragraph (a), CEQ adds an introductory clause to 
make clear that an agency prepares a FONSI after completing an EA. In 
paragraph (a)(1), CEQ revises the text to clarify that an agency 
prepares a FONSI when it determines that NEPA does not require 
preparation of an EIS because the proposed action will not have 
significant effects. In paragraph (a)(2), CEQ also repeats the clause 
``if the agency determines, based on the environmental assessment, that 
NEPA does not require preparation of an environmental impact 
statement'' after mitigated FONSI to make clear that a mitigated FONSI 
is also based on the EA. Finally, CEQ adds a new paragraph (a)(3) to 
clarify that an agency must prepare an EIS following an EA if the 
agency determines that the action will have significant effects.
    CEQ has long recognized in guidance that agencies may use 
mitigation to reduce the anticipated adverse effects of a proposed 
action below the level of significance, resulting in a FONSI. CEQ 
agrees that mitigated FONSIs promote efficiency, and the final rule 
includes safeguards to ensure that agencies will only use mitigated 
FONSIs when they can reasonably conclude that the mitigation measures 
will occur. Regarding opportunities for public engagement, the final 
rule supports public engagement in the EA process, consistent with 
Sec.  1501.9.
    CEQ disagrees that the use of a mitigated FONSI allows agencies to 
trade off different kinds of environmental effects and rely on a net 
benefit outcome to arrive at a FONSI. The CEQ regulations have never 
allowed agencies to use a net benefit analysis across environmental 
effects to inform the level of review. Instead, agencies must consider 
each type of effect or affected resources separately when determining 
whether a proposed action would have a significant effect. Therefore, 
an agency could not rely upon mitigation focused on one type of effect 
to arrive at a FONSI if the proposed action would nonetheless have a 
significant adverse effect of a different kind or on a different 
resource. A mitigated FONSI only enables an agency, consistent with 
existing practice, to determine that an effect is not significant in 
light of mitigation.
    To accommodate the changes to paragraph (a), in the final rule, CEQ 
redesignates paragraphs (a)(1), (a)(2), and (b) of 40 CFR 1501.6 (2020) 
as Sec.  1501.6(b)(1), (b)(2), and (c), respectively. CEQ also makes a 
non-substantive, clarifying change to Sec.  1501.6(b)(2) to simplify 
the language from ``makes its final determination'' to ``determines.''
    Next, CEQ proposed to revise proposed Sec.  1501.6(c) addressing 
what an agency must include in a FONSI regarding mitigation. The second 
sentence provides that when an agency relies on mitigation to reach a 
FONSI, the mitigated FONSI must state the enforceable mitigation 
requirements or commitments that will be undertaken to avoid 
significant effects. CEQ proposed to strike the last clause, ``to avoid 
significant impacts'' at the end of the second sentence and replace 
that phrase with a requirement for the FONSI to state the authorities 
for the enforceable mitigation requirements or

[[Page 35479]]

commitments, since they must be enforceable for agencies to reach a 
mitigated FONSI. CEQ proposed this change because, where a proposed 
action evaluated in an EA may have significant effects, and an agency 
is not preparing an EIS, the FONSI must include mitigation of the 
significant effects. CEQ also proposed to add examples of enforcement 
authorities including ``permit conditions, agreements, or other 
measures.''
    Commenters were generally supportive of proposed Sec.  1501.6(c). A 
few commenters opposed the proposed changes or questioned CEQ's 
authority to include them in the regulations. As discussed in sections 
II.I.1 and II.I.2 on Sec. Sec.  1505.2(c) and 1505.3(c), the rule 
reinforces the integrity of environmental reviews by ensuring that if 
an agency assumes as part of its analysis that mitigation will occur 
and will be effective, the agency takes steps to ensure that the 
assumption is correct. In the final rule, which redesignates proposed 
paragraph (c) as Sec.  1501.6(d), CEQ strikes the phrase ``to avoid 
significant impacts,'' as proposed, from the end of the second sentence 
and replaces it with the clause ``and the authority to enforce them'' 
such that the sentence requires agencies to both state the enforceable 
mitigation requirements or commitments and the authority to enforce 
those commitments when the agency finds no significant effects based on 
mitigation. Next, the sentence includes a list of examples of such 
commitments and authorities. The final rule includes more specificity 
than the proposed rule, to include ``terms and conditions or other 
measures in a relevant permit, incidental take statement, or other 
agreement.''
    Finally, as discussed further in section II.G.2, CEQ proposed to 
add a new sentence at the end of paragraph (c) to require agencies to 
prepare a monitoring and compliance plan when the EA relies on 
mitigation as a component of the proposed action, consistent with Sec.  
1505.3(c). CEQ proposed these changes to help effectuate NEPA's purpose 
as articulated in section 101, including to ``attain the widest range 
of beneficial uses of the environment without degradation, risk to 
health or safety, or other undesirable and unintended consequences'' 
and to ``preserve important historic, cultural, and natural aspects of 
our national heritage.'' 42 U.S.C. 4331(b).
    For the reasons discussed in section II.G.2, CEQ adds this 
requirement in the final rule in Sec.  1501.6(d). Specifically, the 
final rule requires agencies to prepare a mitigation and compliance 
plan for the enforceable mitigation and any other mitigation required 
by Sec.  1505.3(c) to ensure that if an agency assumes as part of its 
analysis that mitigation will occur and will be effective, the agency 
takes steps to ensure that the assumption is correct.
6. Lead Agency (Sec.  1501.7)
    CEQ proposed several changes to Sec.  1501.7, which addresses the 
responsibilities of lead agencies. First, CEQ proposed to retitle Sec.  
1501.7 from ``Lead agencies'' to ``Lead agency'' to align with section 
107(a) of NEPA. 42 U.S.C. 4336a(a). CEQ did not receive comments 
specific to the section title and makes this change in the final rule.
    Second, in paragraph (a) of Sec.  1501.7, CEQ proposed to eliminate 
the reference to ``complex'' EAs so that the regulations would require 
a lead agency to supervise the preparation of any EIS or EA for an 
action or group of actions involving more than one Federal agency. The 
2020 rule added the concept of complex EAs to this section without 
defining the term. CEQ invited comment on whether it should retain the 
concept of a complex EA in the regulations, and if so, how the 
regulations should define a complex EA.
    Three commenters supported removal of complex EAs arguing it was 
confusing and unnecessary. A commenter suggested that if CEQ retains 
the concept, the rule define it as an EA that requires reviews from 
multiple Federal agencies. CEQ removes the reference to complex EAs as 
unnecessary given that the provision already states that a lead agency 
must supervise preparation of an EA when more than one Federal agency 
is involved and the term is not used elsewhere in the rule.
    Some commenters suggested that the text of proposed Sec.  1501.7(a) 
was inconsistent with sections 107(a)(2) and 111(9) of NEPA, which 
address the role of and define ``lead agency.'' CEQ disagrees that the 
language in paragraph (a) is inconsistent. CEQ considers the 
longstanding language in paragraphs (a)(1) and (a)(2) to describe the 
situations where there are more than one Federal agency participating 
in the environmental review process for purposes of identifying the 
lead agency and therefore retains this text in the final rule.
    Third, CEQ proposed to revise paragraph (b) regarding joint lead 
agencies for consistency with section 107(a)(1)(B) of NEPA. 42 U.S.C. 
4336a(a)(1)(B). CEQ proposed to clarify that Federal, State, Tribal, or 
local agencies may serve as a joint lead agency upon invitation from 
the Federal lead agency and acceptance by the invited agency, 
consistent with paragraph (c). CEQ proposed to retain Federal agencies 
in the list of potential joint lead agencies because, consistent with 
current practice, there are circumstances in which having another 
Federal agency serving as a joint lead agency will enhance efficiency. 
CEQ noted in the proposed rule that it does not read the text in 
section 107(a)(1)(B) of NEPA, 42 U.S.C. 4336a(a)(1)(B), as precluding 
this approach; rather, Congress specified that State, Tribal, and local 
agencies may serve as joint lead agencies because they are ineligible 
to serve as the lead agency. CEQ also proposed to add a sentence at the 
end of paragraph (b) to require joint lead agencies to fulfill the role 
of a lead agency, consistent with the last sentence of section 
107(a)(1)(B) of NEPA. 42 U.S.C. 4336a(a)(1)(B).
    One commenter asserted CEQ's proposal was inconsistent with section 
107(a)(1)(B) of NEPA. 42 U.S.C. 4336a(a)(1)(B). Other commenters 
expressed concerns or asked questions about how this might work in 
practice and how agencies might manage and share responsibilities. One 
commenter asserted that the proposal for lead agencies to jointly 
fulfill the role of a lead agency may be complicated and difficult to 
implement and requested CEQ maintain the existing regulatory approach 
for providing for joint lead agencies generally.
    In the final rule, CEQ revises paragraph (b) as proposed, but makes 
agency singular in the first sentence for consistency with the rest of 
the paragraph. In general, CEQ anticipates that there will only be one 
joint lead agency but does not intend the regulations to be so 
restrictive. While section 107(a)(1)(B) does not specifically refer to 
Federal agencies, it makes clear that there is one lead agency when 
there is more than one Federal agency, but it is silent as to what role 
the other Federal agency or agencies will fulfill. 42 U.S.C. 
4336a(a)(1)(B). Therefore, CEQ is clarifying in the final rule that 
other Federal agencies may serve as joint lead agencies or cooperating 
agencies. With respect to the questions about how agencies manage and 
share responsibilities, CEQ notes that the provision for joint lead 
agencies has been in the regulations since 1978, and agencies have a 
great deal of experience in implementing these provisions. Sometimes 
agencies will engage in an MOU or otherwise outline their respective 
roles and responsibilities. CEQ encourages this as a best practice to 
facilitate an efficient process, and agencies should consider using the 
letter or memorandum required by

[[Page 35480]]

Sec.  1501.7(c) to set out their roles and responsibilities.
    Fourth, CEQ proposed to revise paragraph (c) for consistency with 
section 107(a)(1) of NEPA to clarify that the participating Federal 
agencies must determine which agency will be the lead agency and any 
joint lead agencies, and that the lead agency determines any 
cooperating agencies. 42 U.S.C. 4336a(a)(1). CEQ also proposed this 
change for consistency with the text in Sec.  1506.2(c) on joint EISs.
    One commenter interpreted paragraph (c) to mean that the factors 
listed in paragraphs (c)(1) through (c)(5) apply only if there is 
disagreement among participating agencies on which agency should be the 
lead agency and asserted this interpretation is inconsistent with 
section 107(a)(1)(A) of NEPA. 42 U.S.C. 4336a(a)(1)(A). CEQ did not 
intend this interpretation. Therefore, in the final rule, for clarity 
and greater consistency with the statute, CEQ adds the clause 
``considering the factors in paragraphs (c)(1) through (c)(5)'' to the 
first sentence in paragraph (c) to clarify that participating Federal 
agencies should consider these factors in determining which agency 
should serve as the lead agency.
    One commenter suggested that proposed paragraphs (b) and (c) might 
create confusion between agencies and a project proponent regarding 
which agency is ultimately the lead agency for the NEPA review, is 
responsible for meeting timeframes and deadlines, and serves as the 
contact for the project proponent.
    In the final rule, CEQ revises the first sentence of paragraph (c) 
for additional clarity by moving the reference to joint lead agencies 
to the end. Consistent with this provision, participating Federal 
agencies will first determine which agency will serve as the lead 
agency. Then, the lead agency will determine which agencies will serve 
as joint lead or cooperating agencies. While agencies are in the best 
position to communicate with applicants about responsibilities and 
appropriate points of contact, the language in paragraphs (b) and (c) 
make clear that the lead agency is ultimately responsible, though it 
may share responsibilities with a joint lead agency if the 
participating agencies designate one. Further, Sec.  1501.10(a) sets 
forth the provisions on setting deadlines and schedules and Sec.  
1500.5(g) indicates that all agencies are responsible for meeting 
deadlines.
    Fifth, in paragraph (d), CEQ proposed to revise the text for 
consistency with section 107(a)(4) of NEPA, which allows any Federal, 
State, Tribal, or local agency or a person that is substantially 
affected by a lack of lead agency designation to submit a request for 
designation to a participating Federal agency. 42 U.S.C. 4336a(a)(4). 
CEQ also proposed to add a requirement for the receiving agency to 
provide a copy of such a request to CEQ consistent with the statute. 
Finally, CEQ proposed to make a non-substantive change to replace the 
phrase ``private person'' with the word ``individual'' for consistency 
with this term's use in other sections of the regulations.
    Sixth, in paragraph (e), which addresses what happens if Federal 
agencies are unable to agree which agency will serve as the lead 
agency, CEQ proposed to revise the text for consistency with section 
107(a)(5) of NEPA, clarify that the 45 days is calculated from the date 
of the written request to the senior agency officials as set forth in 
Sec.  1501.7(d), and replace ``persons'' with ``individuals'' for 
consistency with the rest of regulations. 42 U.S.C. 4336a(a)(5).
    A commenter stated that the change of ``person'' to ``individual'' 
is inconsistent with sections 107(a)(4) and (a)(5)(A) of NEPA. 42 
U.S.C. 4336a(a)(4), 4336a(a)(5)(A). While CEQ does not view this as a 
substantive change, in the final rule, CEQ revises references to 
``individual'' or ``private person'' to ``person'' throughout the 
regulations for consistency with the recent amendments to NEPA, 
including in Sec.  1501.7(d) and (e), and to avoid using the word 
``person'' and the word ``individual'' in different sections of the 
regulations where the same meaning is intended. Otherwise, CEQ makes 
the changes to paragraph (d) and (e) as proposed.
    Seventh, in paragraph (f), CEQ proposed to revise the text for 
consistency with section 107(a)(5)(C) and (a)(5)(D) of NEPA, to change 
``within 20 days'' to ``no later than 20 days'' in the first sentence, 
and ``20 days'' to ``40 days'' and ``determine'' to ``designate'' in 
the second sentence. 42 U.S.C. 4336a(a)(5)(C)-(D). CEQ did not receive 
any comments to this specific proposal and revises paragraph (f) as 
proposed in the final rule except that the final rule strikes ``and all 
responses to it'' to clarify that the 40-day deadline for CEQ to 
designate a lead agency runs from the date of request. This change is 
consistent with section 107(a)(5)(D) which requires that CEQ designate 
the lead agency ``[n]ot later than 40 days after the date of the 
submission of a request.'' 42 U.S.C. 4336a(a)(5)(D).
    Eighth, CEQ proposed minor edits to paragraph (g), which addresses 
joint environmental documents, including EISs, RODs, EAs, and FONSIs. 
While section 107(b) of NEPA addresses joint EISs, EAs, and FONSIs, 
which are defined collectively as an ``environmental document'' in 
section 111(5) of NEPA, the statute does not explicitly address joint 
RODs. 42 U.S.C. 4336a(b); 4336e(5). Because joint RODs can in some 
circumstances be inefficient, CEQ proposed to revise Sec.  1501.7(g) to 
add a caveat that agencies must issue joint RODs except where it is 
``inappropriate or inefficient'' to do so, such as when an agency has a 
separate statutory directive, or it would take significantly longer to 
issue a joint ROD than separate ones. Additionally, for consistency 
with Sec.  1501.5, CEQ proposed to add that agencies can jointly 
determine to prepare an EIS if a FONSI is inappropriate.
    Commenters generally supported CEQ's proposal. Some commenters 
recommended CEQ expand the inappropriate or inefficient exception to 
EISs, EAs, and FONSIs. Another comment suggested the regulations 
require agencies to document their rationale for not preparing a joint 
document.
    CEQ finalizes Sec.  1501.7(g) as proposed with minor, non-
substantive clarifying edits. CEQ is not applying the inappropriate or 
inefficient exception to EISs, EAs, and FONSIs because section 107(b) 
of NEPA directs agencies to prepare joint EISs, EAs, and FONSIs ``to 
the extent practicable.'' 42 U.S.C. 4336a(b). With respect to RODs, CEQ 
includes the inappropriate or inefficient exception in the final rule 
text in recognition that, in some cases, requiring a joint ROD could 
inadvertently slow the NEPA process down, and the exclusion of RODs 
from section 107(b) of NEPA makes it appropriate to apply a tailored 
standard to joint RODs. See 42 U.S.C. 4336a(b). For example, agencies 
may have different procedures for issuing authorizations under their 
applicable legal authorities or may need to consider different factors. 
However, in other cases, a joint ROD could improve efficiency by 
avoiding duplication of effort or analysis. Agencies collaborating on a 
NEPA document for a specific action are in the best position to 
identify when a joint ROD is not appropriate for that particular 
action.
    Lastly, in paragraph (h)(2), CEQ proposed to add a clause to the 
beginning of the paragraph, consistent with section 107(a)(2)(C) of 
NEPA, to require the lead agency to give consideration to a cooperating 
agency's analyses and proposals. 42 U.S.C. 4336a(a)(2)(C). CEQ proposed 
to move the qualifier clause--to the extent practicable--to precede the 
existing

[[Page 35481]]

requirement to use the environmental analysis and information provided 
by cooperating agencies. CEQ proposed this move to clarify that this 
qualifier only modifies the second clause. CEQ also proposed to change 
``proposals'' to ``information'' to make the text consistent with Sec.  
1501.8(b)(3) and because the use of ``proposal'' here was inconsistent 
with the definition of ``proposal'' provided in Sec.  1508.1(ff). 
Finally, because the reference to jurisdiction by law or special 
expertise was unnecessarily redundant given that the definition of 
``cooperating agency'' in Sec.  1508.1(g) incorporates those phrases, 
CEQ proposed to remove them from the sentence.
    One commenter asserted that proposed Sec.  1501.7(h)(2) 
unnecessarily conflicts with section 107(a)(2)(C) of NEPA, 42 U.S.C. 
4336a(a)(2)(C), and is inconsistent with proposed Sec. Sec.  
1501.8(b)(3), 1508.1(e), and 1508.1(dd). Another commenter opposed the 
changes to paragraph (h)(2) and requested CEQ retain the existing 
language. The commenter asserted that the existing text provides a 
clear statement that agencies should use information and analyses 
provided by cooperating agencies to the maximum extent practicable and 
that the proposed changes remove this clarity. As a result, the 
commenter opined that for cooperating agencies, it will be unclear on 
what qualifies as an analysis or proposal for consideration and what 
qualifies as information.
    In the final rule, CEQ makes the changes as proposed but retains 
``proposal'' in the second clause because, upon further consideration, 
CEQ has determined removing ``proposal'' could introduce unnecessary 
confusion and potential delay, particularly because both the 1978 
regulations and the 2020 regulations treated proposals in the same 
manner as environmental analysis for purposes of this provision, and 
agencies have not raised concerns that the inclusion of proposals 
creates challenges for lead agencies. CEQ retains the qualifier ``to 
the maximum extent practicable,'' which CEQ views as striking the right 
balance between ensuring that the lead agency uses the environmental 
analysis, proposal, and information provided by cooperating agencies 
and providing the lead agency with flexibility in determining the 
content of a document. CEQ disagrees that this provision is in conflict 
with Sec.  1501.8(b)(3), which merely states the requirement for 
cooperating agencies to assist with developing information and analyses 
for NEPA documents; it does not address the lead agency's role in 
considering or using that content. CEQ similarly does not see a 
conflict with the definitions of ``cooperating agency'' and 
``proposal'' and the commenter who asserted that a conflict exists did 
not explain the conflict. Finally, CEQ disagrees that this provision 
conflicts with section 107(a)(2)(C) of NEPA; the provision incorporates 
the text of the statute and goes beyond it to require lead agencies to 
use the information in their documents to the maximum extent 
practicable. 42 U.S.C. 4336a(a)(2)(C).
    Other commenters requested CEQ add a requirement for lead agencies 
to document how and to what extent they have considered the studies, 
analyses, and other information provided by cooperating agencies. CEQ 
declines to add this requirement as unnecessary and burdensome. In most 
cases, lead and cooperating agencies can address these issues 
informally and disclosure of this informal process is unnecessary for 
the decision maker to make an informed decision and documenting them 
would consume agency resources and could lead to a more formalized and 
less collaborative process between the agencies.
    CEQ did not propose edits to paragraph (h)(4) requiring the lead 
agency to determine the purpose and need, and alternatives in 
consultation with any cooperating agency. One commenter recommended the 
final rule add ``with ultimate authority to finalize the purpose and 
need and alternatives resting with the lead agency'' to the end of this 
paragraph. CEQ declines to make this change. While the lead agency has 
ultimate responsibility, in order for documents to address the 
decisions of all agencies with jurisdiction by law and therefore result 
in an efficient review and decision-making process, the cooperating 
agency must have a consultative role. CEQ encourages agencies to 
collaborate early on purpose and need and alternatives to resolve any 
disputes early in the process and ensure the document will meet the 
needs of all agencies relying on the documents for their actions.
    As discussed further in section II.C.8, CEQ proposed to move the 
requirements for schedules and milestones in paragraphs (i) and (j) of 
40 CFR 1501.7 (2020) to Sec.  1501.10(c) in order to consolidate 
provisions related to deadlines, schedules, and milestones in one 
section. CEQ makes this change in the final rule as discussed further 
in section II.C.9.
7. Cooperating Agencies (Sec.  1501.8)
    CEQ proposed an addition to paragraph (a) of Sec.  1501.8 to 
clarify the meaning of the phrase ``special expertise,'' which is one 
of the criteria that qualifies an agency to serve as a cooperating 
agency. Among other things, paragraph (a) provides that, at the request 
of a lead agency, an agency with special expertise may elect to serve 
as a cooperating agency. CEQ proposed to clarify in paragraph (a) that 
special expertise may include Indigenous Knowledge.
    While a few commenters opposed the inclusion of Indigenous 
Knowledge as a form of special expertise, many commenters expressed 
support. Having considered the comments, CEQ continues to view the 
inclusion of Indigenous Knowledge as a form of special expertise as 
appropriate and, therefore, finalizes the change to Sec.  1501.8(a) as 
proposed except that CEQ removes the cross reference to Sec.  1507.3(e) 
because this provision does not address the appeals procedures for 
cooperating agencies. This addition of Indigenous Knowledge as a form 
of special expertise helps ensure that Federal agencies respect and 
benefit from the unique knowledge that Tribal governments bring to the 
environmental review process.
    CEQ invited comment on whether it should include a definition of 
``Indigenous Knowledge'' in the regulations. CEQ received a range of 
comments on this question. Some commenters opposed a definition, and 
several commenters suggested a range of diverse definitions. Other 
commenters recommended CEQ engage in Tribal consultation on the 
definition, CEQ held two Tribal consultations on the rule but a 
consensus view on a definition did not emerge from those consultations. 
CEQ has determined not to define ``Indigenous Knowledge'' in this 
rulemaking. The comments CEQ received did not provide an adequate basis 
for CEQ to determine that providing a definition in the regulations 
would be workable across contexts and Tribal Nations. CEQ, therefore, 
considers it appropriate for agencies to have flexibility to approach 
Indigenous Knowledge in a fashion that makes sense for their programs 
and the Tribal Nations with which they work. Agencies' implementation 
of this provision may be informed by the existing approaches that some 
agencies have developed to Indigenous Knowledge \73\ and the Guidance 
for

[[Page 35482]]

Federal Departments and Agencies on Indigenous Knowledge that CEQ and 
the Office of Science and Technology Policy issued on November 30, 
2022.\74\ CEQ will consider whether additional guidance specific to the 
environmental review context or a regulatory definition is needed in 
the future.
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    \73\ See, e.g., U.S. Dep't of the Interior, 301 Departmental 
Manual 7, Departmental Responsibilities for Consideration and 
Inclusion of Indigenous Knowledge in Departmental Actions and 
Scientific Research (Dec. 5, 2023), https://www.doi.gov/document-library/departmental-manual/301-dm-7-departmental-responsibilities-consideration-and.
    \74\ See Office of Science and Technology Policy and CEQ, 
Guidance for Federal Departments and Agencies on Indigenous 
Knowledge (Nov. 30, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf.
---------------------------------------------------------------------------

    A couple of commenters requested CEQ clarify what is meant by 
``jurisdiction by law'' in Sec.  1501.8(a). CEQ declines to add 
additional language to explain this phrase, which has been in the 
regulations since 1978 and generally has been construed to mean when an 
agency has a role in an action that is conferred by law. CEQ has not 
heard concern from agencies that the phrase is unclear or that a lack 
of definition is creating practical problems. Therefore, establishing a 
definition is unnecessary and could unsettle existing agency practice 
that has successfully implemented this provision.
    Another commenter requested CEQ revise paragraph (a) to require the 
lead agency to grant cooperating agency status if a State or local 
agency has jurisdiction by law or special expertise over a project that 
could impact the local agency's interest. Other commenters requested 
that CEQ compel lead agencies to invite certain parties as a 
cooperating agency, such as substantially affected Tribal agencies. CEQ 
declines to make it a requirement for the lead agency to invite or 
grant cooperating agency status to a State, Tribal, or local agency. 
Section 107(a)(3) of NEPA permits but does not require lead agencies to 
designate Federal, State, Tribal, or local agencies that have 
jurisdiction by law or special expertise as cooperating agencies. See 
42 U.S.C. 4336a(a)(3). Because agency authorities and obligations can 
vary dramatically, CEQ considers it important to maintain flexibility 
for the lead agency to determine on a case-by-case basis whether a 
State, Tribal, or local agency should serve as a cooperating agency.
    One commenter requested that CEQ extend to potential non-Federal 
cooperating agencies the right to appeal to CEQ when a lead Federal 
agency denies them cooperating agency status. CEQ declines to make this 
change in the final rule because lead agencies are in the best position 
to make a case-by-case determination of whether to invite non-Federal 
agencies to be cooperating agencies. Such an appeal process could also 
unduly burden CEQ and its limited resources and delay the environmental 
review process.
    In paragraph (b)(6) regarding consultation with the lead agency on 
developing schedules, CEQ adds ``and updating'' after ``developing'' 
for consistency with Sec.  1501.10(a) that provides for both the 
development and updates to schedules. In paragraph (b)(7), CEQ proposed 
to require cooperating agencies to meet the lead agency's schedule for 
providing comments, but strike the second clause requiring cooperating 
agencies to limit their comments to those for which they have 
jurisdiction by law or special expertise with respect to any 
environmental issue. CEQ proposed this deletion to align this paragraph 
with section 107(a)(3) of NEPA, which provides that a cooperating 
agency may submit comments to the lead agency no later than a date 
specified in the lead agency's schedule. See 42 U.S.C. 4336a(a)(3).
    Some commenters recommended CEQ retain this clause to avoid 
unnecessary delays and avoid disagreements amongst lead and cooperating 
agencies. CEQ disagrees that this clause will necessarily avoid 
disagreements amongst lead and cooperating agencies because agencies 
may disagree on whether an agency's comments fall within its 
jurisdiction or special expertise. Imposing this limitation on the 
participation of cooperating agencies may also undermine the kind of 
collaborative engagement between lead agencies and cooperating agencies 
that enhances the efficiency and quality of environmental reviews. CEQ 
is also concerned that retaining the clause could have unintended 
consequences that could delay decision making by cooperating agencies 
with jurisdiction by law. For example, if a cooperating agency 
considers a document to be legally insufficient with respect to a 
particular issue, this could lead the cooperating agency to develop its 
own, separate NEPA document, resulting in a delay in the cooperating 
agency's action and potential legal risk to the lead agency with a 
different analysis. CEQ encourages cooperating agencies to identify and 
seek to resolve issues as early in the process as possible.
8. Public and Governmental Engagement (Sec.  1501.9)
    CEQ proposed to address public and governmental engagement in a 
revised Sec.  1501.9 by moving the provisions of 40 CFR 1506.6 (2020), 
``Public involvement,'' into proposed Sec.  1501.9 and updating them as 
described in this section, and moving the provisions of 40 CFR 1501.9 
(2020) specific to the EIS scoping process to Sec.  1502.4. CEQ 
proposed these updates to better promote agency flexibility to tailor 
engagement to their specific programs and actions, maintaining the 
requirements to engage the public and affected parties in the NEPA 
process, and thereby fostering improved public and governmental 
engagement. CEQ proposed the revisions to Sec.  1501.9 to emphasize the 
importance of creating an accessible and transparent NEPA process. CEQ 
also proposed many of these changes in response to feedback on the 
Phase 1 proposed rule, the 2020 proposed rule, and input received from 
stakeholders and agencies during development of this proposed rule. 
Much of that feedback requested increased opportunities for public 
engagement and increased transparency about agency decision making, 
along with general requests that CEQ elevate the importance of public 
engagement in the NEPA process. Finally, CEQ proposed to move general 
requirements related to public engagement to part 1501 to emphasize 
that public engagement is important to multiple components of the NEPA 
process and agency planning, while moving other provisions related to 
scoping for EISs to Sec.  1502.4.
    First, CEQ proposed to move the provisions of 40 CFR 1501.9 (2020) 
on scoping for EISs--paragraphs (a), (b), (c), (d), (d)(1) through (8), 
(f), and (f)(1) through (5)--to proposed Sec.  1502.4, ``Scoping.'' As 
discussed in sections II.C.2 and II.C.10 CEQ proposed to move the 
provisions in 40 CFR 1502.4 (2020) on ``Major Federal actions requiring 
the preparation of environmental impact statements'' to Sec. Sec.  
1501.3 and 1501.11. Also, as discussed in section II.C.2, CEQ proposed 
to move the remaining text of 40 CFR 1501.9(e) and (e)(1) through (3) 
(2020) on the determination of scope to Sec.  1501.3 because 
determining the scope of actions applies to all levels of NEPA review.
    Many commenters were supportive of CEQ's proposed approach. 
Commenters expressed support for the restoration of provisions related 
to early review and coordination and the proposed revisions to 
Sec. Sec.  1501.9 and 1502.4 to reinforce the importance of early 
public engagement designed to meet the needs of the community. 
Supportive commenters characterized CEQ's proposed changes as being 
more in line with the statute as well as best practice by emphasizing 
the importance of initiating public outreach and planning as early as 
possible. Commenters also pointed to early engagement and opportunities 
for comment as trademarks of an effective

[[Page 35483]]

NEPA process that can help prevent unexpected problems and delays by 
helping agencies identify potential roadblocks early, design effective 
solutions when proposals and alternatives are still being developed, 
and build trust with communities. Some commenters opposed the outreach 
and engagement requirements in proposed Sec.  1501.9, asserting that 
they were too open ended and would add burden and time to the process.
    In this final rule, CEQ is reorganizing these sections as proposed. 
Public engagement is a foundational element of the NEPA process and is 
appropriately addressed in part 1501. Agencies have decades of 
experience designing effective outreach strategies that are tailored to 
the specifics of their programs and actions. Technology, when used 
appropriately, can further improve these strategies, and this final 
rule will provide agencies with the flexibility and encouragement to 
more effectively engage with interested or affected governments, 
communities, and people.
    Second, CEQ proposed to retitle Sec.  1501.9 to ``Public and 
governmental engagement'' and accordingly update references to ``public 
involvement'' within this section and throughout the CEQ regulations to 
``public engagement.'' CEQ proposed this change to better reflect how 
Federal agencies should interact with the public and interested or 
affected parties, stating that the word ``engagement'' reflects a 
process that is more interactive and collaborative compared to simply 
including or notifying the public of an action. Engagement is also a 
common term for Federal agencies with experience developing public 
engagement strategies or that work with public engagement specialists. 
CEQ proposed to add ``governmental'' to the title to better reflect the 
description of the provisions included in the section, which relate to 
both public and governmental entities.
    Commenters were generally supportive of this proposed change 
because it implies a process that is more interactive and collaborative 
instead of just notifying the public of an action. CEQ is revising the 
title of Sec.  1501.9 as proposed.
    Third, CEQ proposed to add proposed paragraphs (a) and (b) to 
articulate the purposes of public and governmental engagement and to 
identify the responsibility of agencies to determine the appropriate 
methods of public and governmental engagement and conduct scoping 
consistent with Sec.  1502.4 for EISs. CEQ proposed to use the phrase 
``meaningful'' engagement in this particular paragraph to better 
describe the purpose of this process because public and governmental 
engagement should not be a mere check-the-box exercise, and agencies 
should conduct engagement with appropriate planning and active dialogue 
or other interaction with stakeholders in which all parties can 
contribute.
    Many commenters expressed support for CEQ's use of ``meaningful 
engagement.'' Commenters who disliked the descriptor ``meaningful'' 
stated that the word is too subjective, open to differing 
interpretations, and likely to cause unnecessary controversy and delay. 
Other commenters suggested the description of ``meaningful'' was not 
strong or specific enough, as proposed, to result in the desired 
outcome and recommended CEQ define meaningful engagement.
    In the final rule, CEQ combines purpose and responsibility, which 
it had proposed to address in separate paragraphs, in Sec.  1501.9(a) 
because these concepts are linked, and upon further consideration, CEQ 
considers addressing them together to reduce redundancy in proposed 
paragraphs (a) and (b), and enhance the clarity of the final rule. 
Additionally, the second sentence of proposed paragraph (b) addresses 
the role of engagement in determining the scope of a NEPA review; as 
discussed further in this section, CEQ revises Sec.  1501.9(b) to 
address this topic. The first two sentences in Sec.  1501.9(a) describe 
the purposes of public engagement and governmental engagement. CEQ is 
retaining ``meaningful engagement'' as proposed to better describe the 
overall purpose of public engagement. Public engagement should not be a 
simple check-the-box exercise, and agencies should conduct engagement 
with appropriate planning and active dialogue or other interaction with 
interested parties in which all can contribute. Federal agencies have 
flexibility to determine what methods are appropriate to achieve a 
collaborative and inclusive process that meaningfully and effectively 
engages communities affected by their proposed actions. As part of 
meaningful engagement, CEQ encourages agencies to engage with all 
potentially affected communities including communities with 
environmental justice concerns, consistent with Sec.  1500.2(d).
    In the final rule, CEQ adds a new third sentence to paragraph (a) 
to clarify that the purpose of Sec.  1501.9 is to set forth agencies' 
responsibilities and best practices for such engagement. Finally, CEQ 
moves the first sentence of proposed paragraph (b) to be the last 
sentence of paragraph (a) requiring agencies to determine the 
appropriate methods of engagement for their proposed actions. Agencies 
are best situated to carry out this responsibility, because agencies 
understand their programs and authorities, and the communities that are 
interested in and affected by them.
    CEQ revises Sec.  1501.9(b) in the final rule, different from the 
proposal, to clarify the role of public and governmental engagement in 
determining the scope of a NEPA analysis. As discussed in section 
II.C.2, agencies must identify the scope of their proposed action, 
consistent with the definition of ``major Federal action,'' which in 
turn informs the level of NEPA review, and what alternatives and 
effects an agency must consider; public input has long informed this 
process. Therefore, CEQ has added a sentence to Sec.  1501.9(b) to 
require agencies to use public and governmental engagement to inform 
the level of review for and scope of analysis of a proposed action 
consistent with Sec.  1501.3. CEQ qualifies this provision ``as 
appropriate'' to account for the variety of ways that agencies should 
engage with the public and because not all actions will necessitate 
public engagement. For example, agencies must engage with the public 
when developing new CEs, but generally do not do so when applying CEs 
to their proposed actions.
    CEQ adds the second sentence of proposed paragraph (b) in the final 
rule, which cross references to scoping for EISs as set forth in Sec.  
1502.4. Finally, CEQ adds a new sentence to Sec.  1501.9(b) encouraging 
agencies to apply that scoping provision to EAs as appropriate. This 
addition is consistent with Sec.  1501.5(j), which encourages agencies 
to apply Sec.  1502.4 to EAs as appropriate to improve efficiency and 
effectiveness and is also responsive to public comments requesting more 
clarity on what is required for an EIS versus an EA as well as comments 
requesting increased opportunities for involvement on EAs. Agencies 
have experience successfully using the scoping process for EAs, and the 
regulatory text clarifies that agencies may continue to use the scoping 
process to inform the level of review, or find it helpful when they 
intend to rely on mitigation in an EA to reduce effects below 
significance and reach a FONSI rather than preparing an EIS.
    Fourth, in the proposed rule, Sec.  1501.9 had separate paragraphs 
addressing outreach (paragraph (c)) and notification (paragraph (d)) 
with the former recommended procedures and the latter required. 
Specifically, proposed

[[Page 35484]]

paragraph (c)(1) recommended that agencies invite likely affected 
agencies and governments, and proposed paragraph (c)(2) recommended 
that agencies conduct early engagement with likely affected or 
interested members of the public. CEQ modeled these provisions on the 
prior approaches in 40 CFR 1501.7(a)(1) (2019) and 40 CFR 1501.9(b) 
(2020) requiring the lead agency to invite early participation of 
likely affected parties. Proposed paragraph (c)(3) would provide 
flexibility to agencies to tailor engagement strategies, considering 
the scope, scale, and complexity of the proposed action and 
alternatives, the degree of public interest, and other relevant 
factors. CEQ proposed to move from 40 CFR 1506.6(c) (2020) to Sec.  
1501.9(c)(3) the requirement that agencies consider the ability of 
affected parties to access electronic media when selecting the 
appropriate methods of notification. CEQ also proposed to add a clause 
to the end of paragraph (c)(3) to require agencies to consider the 
primary language of affected persons when determining the appropriate 
notification methods to use.
    At least one commenter noted that the use of ``should'' in proposed 
paragraph (c)(1) was inconsistent with proposed Sec.  1501.7(h)(1) 
requiring lead agencies to invite the participation of cooperating 
agencies. Other commenters asked that the language on outreach be 
stronger, recommending that CEQ change ``should'' to ``shall'' in 
proposed paragraph (c) and ``consider'' to ``ensure'' in proposed 
paragraph (c)(3).
    In the final rule, CEQ combines proposed paragraphs (c) and (d) in 
Sec.  1501.9(c) to address outreach and notification. CEQ revised the 
introductory text from ``lead agency'' to ``agencies'' for consistency 
with the use of ``agencies'' in the rest of Sec.  1501.9. This change 
does not mean that each agency involved in an EIS or EA needs to 
conduct these responsibilities independently or that the lead agency is 
not ultimately responsible given its role in supervising the 
preparation of an EIS or EA consistent with Sec.  1501.7(a), but rather 
that there is flexibility in which agency conducts these 
responsibilities under the lead agency's supervision.
    CEQ also revises the introductory text from agencies ``should'' to 
``shall'' for consistency with the both the 2020 and 1978 regulations 
and to resolve the inconsistency between Sec.  1501.7(h)(1), which 
requires the lead agency to invite cooperating agencies at the earliest 
practicable time and proposed Sec.  1501.9(c)(1) encouraging the lead 
agency to invite the participation of likely affected agencies and 
governments, including cooperating agencies, as early as practicable. 
CEQ also is changing ``should'' to ``shall'' because using ``should'' 
would be confusing and inaccurate to the extent that it could be read 
to suggest that some requirements are optional. CEQ adds ``as 
appropriate'' to qualify the requirement in paragraph (c)(2) to conduct 
early engagement to make clear that when the regulations require or 
encourage agencies to conduct engagement, they should do so early in 
the process. These changes from the proposal do not establish new 
obligations for agencies, but rather, clarify which provisions are 
obligatory in light of the requirements of the NEPA statute and other 
provisions in the regulations.
    CEQ also adds ``any'' in paragraph (c)(1) to acknowledge that for 
some actions, there will not be any likely affected agencies or 
governments. CEQ finalizes paragraph (c)(3) as proposed with two 
changes, which requires agencies to consider the appropriate methods of 
outreach and notification, including the ability of affected persons 
and agencies to access electronic media and the primary language of 
affected persons. In the final rule, CEQ includes ``and persons'' after 
entities consistent with the phrasing in paragraph (c)(5)(i) and makes 
language plural for consistency with ``persons.'' Additionally, CEQ 
notes that agencies will also need to consider other statutory 
requirements, such as those under the Rehabilitation Act, when 
selecting appropriate methods of outreach and notification.
    Fifth, CEQ proposed to move the introductory clause of 40 CFR 
1506.6 (2020), ``Agencies shall'' to proposed paragraph (d) and add the 
paragraph heading ``Notification.'' As discussed earlier in this 
section, CEQ is combining proposed paragraph (c) and (d) in the final 
rule. CEQ proposed in Sec.  1501.9 and throughout the proposed 
regulations to replace the word ``notice'' with ``notification,'' 
except where ``notice'' is used in reference to a Federal Register 
notice. CEQ is making this change in the final rule to clearly 
differentiate between those requirements to publish a notice in the 
Federal Register and other requirements to provide notification of an 
activity, which may include a notice in the Federal Register or use of 
other mechanisms.
    Sixth, in the proposed rule, CEQ proposed a new paragraph (d)(1) to 
require agencies to publish notification of proposed actions they are 
analyzing through an EIS. CEQ proposed this requirement in response to 
feedback from multiple stakeholders and members of the public 
requesting more transparency about agency proposed actions. CEQ 
finalizes the proposed provision in Sec.  1501.9(c)(4) with an 
additional clause at the end of its proposed language to reference that 
this requirement can be met through a NOI consistent with Sec.  1502.4. 
CEQ adds this language in response to at least one comment expressing 
confusion on this point.
    Agencies may publish notification through websites, email 
notifications, or other mechanisms such as the Permitting 
Dashboard,\75\ so long as the notification method or methods are 
designed to adequately inform the persons and agencies who may be 
interested or affected, consistent with the definition of ``publish'' 
in Sec.  1508.1(gg). An NOI in the Federal Register, consistent with 
Sec.  1502.4(e), can fulfill the notification requirement, but agencies 
also may elect to use additional notification methods.
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    \75\ See Fed. Permitting Improvement Steering Council, 
Permitting Dashboard for Federal Infrastructure Projects, https://www.permits.performance.gov/.
---------------------------------------------------------------------------

    Seventh, CEQ proposed to move 40 CFR 1506.6(b) (2020), including 
its subparagraphs, (b)(1) through (b)(3) and (b)(3)(i) through 
(b)(3)(x), to proposed Sec.  1501.9(d)(2) (including (d)(2)(i) through 
(d)(2)(iii) and (d)(2)(iii)(A) through (d)(2)(iii)(I)), and proposed to 
make minor revisions to improve readability and consistency with the 
rest of Sec.  1501.9. CEQ is finalizing these changes with some 
additional edits as described in the following paragraphs.
    In the final rule, proposed paragraph (d)(2) becomes Sec.  
1501.9(c)(5) requiring agencies to provide public notification of NEPA-
related hearings, public meetings, or other opportunities for public 
engagement, as well as the availability of environmental documents. At 
least one commenter noted that CEQ's proposed addition of the qualifier 
``as appropriate'' before the requirement to provide public 
notification of the availability of documents could be read to give 
agencies discretion to provide such notice. This was not CEQ's intent 
as the regulations have always required agencies to provide such notice 
so CEQ does not include this qualifier in the final rule.
    In the proposed rule, paragraphs (d)(2)(i) through (d)(2)(iii) 
expanded on these general public notification requirements in paragraph 
(d)(2). Specifically, CEQ proposed to move 40 CFR 1506.6(b)(1) and 
(b)(2) (2020) to proposed paragraphs (d)(2)(i) and (d)(2)(ii), 
respectively, and change

[[Page 35485]]

``organizations'' to ``entities and persons'' in paragraph (d)(2)(ii). 
In the final rule, CEQ strikes the introductory clause, ``In all 
cases,'' as superfluous, and consolidates into Sec.  1501.9(c)(5)(i) 
the requirement to notify both those entities and persons who have 
requested notification on an individual action as well as those who 
have requested regular notification, such as actions in a geographic 
region or a category of actions an agency typically takes. Paragraph 
(c)(5)(ii), which was proposed paragraph (d)(2)(ii), only addresses 
when notification is required in the Federal Register--when an action 
has effects of national concerns. CEQ also changes ``notice'' to 
``notification'' in Sec.  1501.9(c)(5)(ii) for consistency with the 
rest of Sec.  1501.9 and adds the word ``also'' to make clear that this 
notification is in addition to the notification required by paragraph 
(c)(5)(i).
    Eighth, CEQ proposed to move 40 CFR 1506.6(b)(3) (2020) to proposed 
paragraph (d)(2)(iii), which addressed notification for actions for 
which the effects are primarily of local concern. CEQ proposed to 
change ``notice may include'' to ``notification may include 
distribution to or through'' followed by a list of mechanisms for 
notification. CEQ makes this change as proposed in Sec.  
1501.9(c)(5)(iii) the final rule.
    Ninth, CEQ proposed to move 40 CFR 1506.6(b)(3)(i) and (b)(3)(iii) 
through (b)(3)(x) (2020) to proposed Sec.  1501.9(d)(2)(iii)(A) through 
(d)(2)(iii)(I), respectively. CEQ proposed to combine the provisions 
from 40 CFR 1506.6(b)(3)(i) and (ii) (2020) on notice to State, Tribal, 
and local governments and agencies in proposed Sec.  
1501.9(d)(2)(iii)(A) to consolidate similar provisions. CEQ also 
proposed to remove the parenthetical in proposed paragraph 
(d)(2)(iii)(C) and instead refer to local newspapers ``having general 
circulation.'' Lastly, CEQ proposed to add a sentence in proposed 
paragraph (d)(2)(iii)(I) that recommended agencies establish email 
notification lists or similar methods for the public to easily request 
electronic notifications for proposed actions. CEQ includes all of 
these changes as proposed in the final rule at Sec.  
1501.9(c)(5)(iii)(A) through (I).
    Tenth, CEQ proposed to move the requirements to make EISs available 
under FOIA from 40 CFR 1506.6(f) (2020) to Sec.  1501.9(d)(3). CEQ 
received comments on this provision requesting that CEQ restore the 
language from the 1978 regulations because some members of the public 
do not have easy access to electronic information, it is important for 
the public to have access to agency comments, and that restoring the 
language would help restore consistency in agency implementation of 
FOIA to ensure transparency. CEQ considered the comments and the 
changes between the 1978 and 2020 rules and determined the existing 
language addresses access to underlying documents and comments. 
However, CEQ determined it is appropriate to restore language related 
to fees as the 2020 rule removed language that agencies should make 
documents related to the development of NEPA documents free of charge 
or no more than the cost of duplication. Therefore, in the final rule, 
CEQ adds a clause to Sec.  1501.9(c)(6) to require agencies to make 
EISs and any underlying documents available consistent with FOIA and 
without charge to the extent practicable.
    Eleventh, CEQ proposed to move 40 CFR 1506.6(c) (2020) requiring 
agencies to hold or sponsor public meetings or hearings to Sec.  
1501.9(e), with modification, including adding the paragraph heading 
``Public meetings and hearings.'' Additionally, CEQ proposed to make 
this provision discretionary, and add that agencies could do so in 
accordance with ``regulatory'' requirements as well as statutory 
requirements or in accordance with ``applicable agency NEPA 
procedures.'' In the proposal, CEQ revised the sentence requiring 
agencies to consider the ability of affected entities to access 
electronic media and to instead encourage agencies to ``consider the 
needs of affected communities'' when determining what format to use for 
a public hearing or public meeting because the best option for the 
communities involved may vary. Lastly, CEQ proposed to add a sentence 
to clarify that when an agency accepts comments for electronic or 
virtual meetings, agencies must allow the public to submit them 
electronically, via regular mail, or another appropriate method.
    Commenters raised concerns about the proposed change from ``shall'' 
to ``may'' suggesting that this would make discretionary whether to 
hold public hearings, meetings and other opportunities for public 
engagement. CEQ notes that this provision gives agencies the discretion 
to determine the appropriate methods of public engagement except where 
required by other statutory or regulatory requirements, including 
agency NEPA procedures. However, CEQ did not intend to make a 
substantive change to this provision, and therefore, in Sec.  1501.9(d) 
of the final rule, retains the use of ``shall'' consistent with 40 CFR 
1506.6(c) (2020). In the third sentence addressing format for hearings 
or meetings, CEQ adds examples of formats agencies might consider--
whether an in-person or virtual meeting or a formal hearing or 
listening session is most appropriate--and requires rather than 
encourages agencies to consider the needs of affected communities.
    Commenters also requested that CEQ restore the recommendation from 
the 1978 regulations that agencies make draft EISs available at least 
15 days in advance when they are the subject of a public meeting or 
hearing. CEQ agrees that this recommendation is helpful to facilitate a 
more effective public engagement, and therefore includes a new sentence 
at the end of Sec.  1501.9(d) consistent with the longstanding 
recommendation from the 1978 regulations but broadening it to apply to 
draft environmental documents.
    Twelfth, CEQ proposed to move 40 CFR 1506.6(a) (2020) requiring 
agencies to involve the public in preparing and implementing their 
agency NEPA procedures to proposed Sec.  1501.9(f), adding a paragraph 
heading ``Agency procedures'' and changing the word ``involve'' to 
``engage'' consistent with CEQ's proposed change of ``involvement'' to 
``engagement'' through the regulations. CEQ finalizes this provision in 
Sec.  1501.9(e) as proposed.
    Finally, CEQ notes two provisions in 40 CFR 1506.6 (2020) that it 
did not incorporate into Sec.  1501.9. First, as discussed in section 
II.I.3, CEQ proposed to move the requirement for agencies to explain in 
their NEPA procedures where interested persons can get information on 
EISs and the NEPA process from 40 CFR 1506.6(e) (2020) to Sec.  
1507.3(c)(11) since this is a requirement for NEPA procedures, not 
public engagement. And second, CEQ proposed to delete 40 CFR 1506.6(d) 
(2020) on soliciting information from the public because that concept 
is present in the purpose and language of revised Sec.  1501.9. In the 
final rule, CEQ strikes these paragraphs from 40 CFR 1506.6 (2020).
9. Deadlines and Schedule for the NEPA Process (Sec.  1501.10)
    CEQ proposed to retitle Sec.  1501.10 to ``Deadlines and schedule 
for the NEPA process'' from ``Time limits'' and revise the section to 
direct agencies to set deadlines and schedules for NEPA reviews to 
achieve efficient and informed NEPA analyses consistent with section 
107 of NEPA, 42 U.S.C. 4336a. CEQ proposed these changes to improve 
transparency and predictability for stakeholders and the public 
regarding NEPA reviews.

[[Page 35486]]

    Commenters were generally supportive of CEQ's proposed changes to 
this provision in order to promote a timely NEPA process. Some 
commenters expressed support while suggesting additional changes as 
described further in this section and in the Phase 2 Response to 
Comments. Other commenters opposed the inclusion of the deadlines, 
expressing concerns that the deadlines would result in rushed analyses, 
strain agency and applicant resources, and have negative impacts on 
public engagement. CEQ addresses these concerns in the context of 
specific provisions discussed in this section.
    CEQ revises the title of Sec.  1501.10 and reorganizes and revises 
the provision as discussed further in this section. As discussed in 
section II.J.1, CEQ removes the references to ``project sponsor'' in 
favor of the defined term ``applicant,'' which includes project 
sponsors, throughout Sec.  1501.10 and the rest of the regulations.
    In addition to those revisions, CEQ proposed revisions to specific 
provisions of Sec.  1501.10. First, in paragraph (a), CEQ proposed an 
edit to the first sentence to emphasize that while NEPA reviews should 
be efficient and expeditious, they also must include ``sound'' 
analysis. CEQ also proposed to direct agencies to set ``deadlines and 
schedules'' appropriate to individual or types of proposed actions to 
facilitate meeting the deadlines proposed in Sec.  1501.10(b). 
Consistent with section 107(a)(2)(D) of NEPA, CEQ also proposed in this 
paragraph to require, where applicable, the lead agency to consult with 
and seek concurrence of joint lead, cooperating, and participating 
agencies and consult with project sponsors and applicants when 
establishing and updating schedules. 42 U.S.C. 4336a(a)(2)(D).
    Some commenters supported the proposed requirement for consultation 
on schedules in paragraph (a), as well as in paragraph (c). Multiple 
commenters opposed the proposed requirements to seek concurrence 
asserting that it would result in delay and exceed the statutory 
requirements of section 107(a)(2)(D) of NEPA. 42 U.S.C. 4336a(a)(2)(D). 
Multiple commenters requested additional clarity on how agencies would 
carry out consultation with the applicant pursuant to paragraphs (a) 
and (c). One commenter suggested making reference to ``use of reliable 
and currently accurate data'' as an example of sound analysis in 
paragraph (a).
    CEQ makes the revisions to paragraph (a) as proposed with three 
additional edits. First, CEQ excludes the reference to project sponsors 
in favor of the defined term ``applicant'' in Sec.  1508.1(c). Second, 
CEQ adds ``for the proposed action'' after ``schedule'' to clarify that 
lead agencies establish schedules for each action. Third, CEQ includes 
the requirement to seek the concurrence of any joint lead, cooperating, 
and participating agencies, and in consultation with any applicants, 
adding the word ``any'' to clarify that not all actions will 
necessarily have a joint lead, cooperating, and participating agencies 
or applicants.
    CEQ adds the requirement to ``seek the concurrence'' as proposed to 
encourage up-front agreement on schedules to facilitate achieving the 
statutory deadlines. This provision requires the lead agency to seek 
concurrence, not obtain concurrence. While lead agencies should strive 
to reach agreement on schedules because agreement on a schedule up 
front will facilitate the agencies' meeting a deadline, lead agencies 
do not need to obtain concurrence to proceed if the agencies cannot 
reach an agreement on the schedule. CEQ considers this approach to 
strike the right balance because requiring the lead agency to obtain, 
rather than seek, concurrence could unreasonably delay the process if 
an agency will not concur and not requiring any agreement would 
undermine the efficacy of the schedule if other agencies cannot meet 
the schedule or have unaddressed concerns with it. CEQ declines to add 
a reference to the ``use of reliable and currently accurate data'' as 
an example of sound analysis because Sec.  1506.6 addresses the 
requirement to use reliable data, and CEQ does not consider it 
necessary or appropriate to address data in this section on deadlines 
and schedules.
    Second, CEQ proposed to update paragraph (b) and its subparagraphs 
for consistency with section 107(g) of NEPA. See 42 U.S.C. 4336a(g). In 
the proposed revisions, paragraphs (b)(1) and (b)(2) would require 
agencies to complete an EA within one year and an EIS in two years, 
respectively, unless the lead agency, in consultation with any 
applicant or project sponsor, extends the deadline in writing and 
establishes a new deadline providing only as much time as necessary to 
complete the EA or EIS. CEQ proposed to include ``any'' to account for 
circumstances where there is no applicant or project sponsor, in which 
case the consultation requirement would be inapplicable to extension of 
deadlines.
    Some commenters opposed the deadlines asserting that agencies will 
shortcut public participation or Tribal consultation in the NEPA 
process, and that the deadlines create conflicts with implementation of 
section 106 of the National Historic Preservation Act. 54 U.S.C. 
306101. Other commenters expressed concern that the deadlines will 
impede the ability of ``minority and Indigenous communities'' to 
organize and advise their communities of impending harm. Other 
commenters expressed concerns that other proposed changes, including 
consideration of reasonably foreseeable climate change related effects 
and disproportionate and adverse effects on communities with 
environmental justice concerns, will make it challenging for agencies 
to meet the prescribed deadlines. One commenter asserted that the 
proposed deadlines are arbitrary and at odds with the need for rigorous 
scientific study to support NEPA findings.
    CEQ makes the changes to paragraphs (b), (b)(1), and (b)(2) as 
proposed with two additions to implement the statutory deadlines 
established in section 107(g) of NEPA. 42 U.S.C. 4336a(g). First, CEQ 
excludes the reference to project sponsors in favor of the defined term 
``applicant'' in Sec.  1508.1(c). Second, CEQ includes ``as 
applicable'' before ``in consultation with any applicant'' in Sec.  
1501.10(b)(1) and (b)(2) to emphasize that not all actions have 
applicants. In such cases, an agency may extend the deadline and set a 
new deadline in writing. CEQ appreciates the concerns expressed by 
commenters that timelines could lead to rushed analysis but recognizes 
that establishing deadlines can improve the efficiency and timeliness 
of the environmental review process and notes that section 107(g) of 
NEPA and this provision provide agencies with the ability to extend the 
deadline where necessary to ensure they meet their public engagement 
and consultation obligations and conduct the requisite analysis. 42 
U.S.C. 4336a(g). Further, agencies have demonstrated that they can 
complete robust and high-quality environmental reviews within these 
timelines. CEQ encourages agencies to conduct early public engagement, 
consistent with Sec.  1501.9, because early engagement can improve the 
efficiency and quality of the environmental review process and can help 
ensure agencies conduct meaningful engagement while also meeting the 
statutory timeframes.
    CEQ also notes that nothing in the regulations modifies compliance 
with section 106 of NHPA. CEQ disagrees that the updated provisions of 
these regulations, including Sec. Sec.  1502.15(b); 1502.16(a)(6), 
(a)(9), and (a)(13); and 1508.1(g)(4)--which reflect current practice 
and requirements such as those requiring consideration of certain 
effects

[[Page 35487]]

like climate-related effects--impose new requirements that will 
increase review timeframes such that agencies will not be able to meet 
timelines. Rather, as discussed in section II.D.14, II.D.15, and 
II.J.5, CEQ is updating these provisions to reflect current practice 
and categories of reasonably foreseeable effects long considered under 
NEPA consistent with the statute and case law. CEQ disagrees that these 
changes will prevent agencies from complying with the deadlines or that 
the deadlines will prevent agencies from conducting rigorous analysis. 
Many agencies already have considerable experience analyzing these 
types of effects.
    Third, consistent with section 107(g) of NEPA, CEQ proposed a new 
paragraph (b)(3) to identify the starting points from which agencies 
measure the deadline for EAs and EISs and to require agencies to 
measure from the soonest of three dates, as applicable. 42 U.S.C. 
4336a(g). Consistent with section 107(g)(1) of NEPA, the proposed dates 
were: (i) the date the agency determines an EA or EIS is required; (ii) 
the date the agency notifies an applicant that its application to 
establish a right-of-way is complete; and (iii) the date the agency 
issues an NOI. 42 U.S.C. 4336a(g)(1).
    Multiple commenters expressed support for the starting points 
proposed in paragraph (b)(3), with some commenters suggesting changes 
for further clarification. Many of these commenters requested the 
regulations require agencies to include in their agency NEPA procedures 
criteria for automatically starting the one-year or two-year periods. 
Suggestions included criteria for when an application for a permit, 
authorization, or right-of-way is considered complete.
    CEQ makes the changes as proposed in paragraph (b)(3) and (b)(3)(i) 
through (b)(3)(iii) because they incorporate the statutory provisions 
of section 107(g)(1) of NEPA. See 42 U.S.C. 4336a(g)(1). CEQ declines 
to require agencies to include criteria in their agency NEPA 
procedures, though agencies may do so at their discretion so long as 
they are consistent with this provision.
    Fourth, after considering the comments on this section and more 
generally emphasizing the importance of consistency and clarity, in the 
final rule, CEQ adds paragraph (b)(4) to address the end dates for 
measuring the deadlines. This revision is consistent with CEQ's 
approach in the proposed rule to implementing section 107(g)(1) in a 
manner that is transparent and practical and will ensure consistency 
across Federal agencies in measuring deadlines, avoiding 
inconsistencies that could create confusion among agencies and 
applicants. 42 U.S.C. 4336a(g)(1). Paragraphs (b)(4)(i) and 
(b)(4)(i)(A) through (b)(4)(i)(C) specify that for EAs, the end date is 
the date on which the agency publishes an EA; makes the EA available 
pursuant to an agency's pre-decisional administrative review process, 
where applicable; or issues an NOI to prepare an EIS. CEQ notes that in 
situations where an agency publishes both a draft EA and a final EA, 
the final EA is the EA used to determine the end date. Paragraph 
(b)(4)(ii) specifies for EISs that the end date is the date on which 
EPA publishes a notice of availability of the final EIS or, where 
applicable, the date the agency makes the final EIS available pursuant 
to its pre-decisional administrative review process, consistent with 
Sec.  1506.10(c)(1).
    Fifth, CEQ proposed in paragraph (b)(4) to require agencies to 
submit the report to Congress on any missed deadlines as required by 
section 107(h) of NEPA. 42 U.S.C. 4336a(h). Some commenters requested 
the regulations include additional detail on the annual report to 
Congress, including detail on the content and deadlines for submitting 
the report. One commenter also requested that the regulations allow for 
a pause in the time periods for specific scenarios, such as when the 
agency is waiting for information from an applicant or to award 
contracts to support analyses. Similarly, other commenters suggested 
generally that the final rule include provisions to provide more 
flexibility in measuring the deadlines to avoid rushed environmental 
analyses.
    CEQ finalizes proposed Sec.  1501.10(b)(4) in paragraph (b)(5) as 
proposed but changes ``The'' to ``Each'' to clarify that each lead 
agency separately has a responsibility to report to Congress if it 
misses a deadline. CEQ declines to provide more specifics about the 
report to Congress at this time, but will consider whether guidance is 
necessary to assist agencies in their reporting obligations. CEQ also 
declines to provide a mechanism for pausing the deadline clock. The 
regulations, consistent with the statute, provide that a lead agency 
may extend the deadline in order to provide any additional time 
necessary to complete an EIS or EA. Where an agency has extended a 
deadline for an EA or EIS in conformity with this section and section 
107(g) of NEPA, the agency has not missed a deadline for purposes of 
107(h) and would not need to submit a report to Congress. 42 U.S.C. 
4336a(g)-(h). For example, if an agency is experiencing a delay outside 
its control such that it does not have the requisite information to 
complete its EA or EIS, the lead agency may extend the one- or two-year 
deadlines. Because the statute and regulations provide agencies with 
the flexibility to extend deadlines when necessary to complete an EA or 
EIS, CEQ does not consider it necessary or appropriate to establish a 
mechanism for agencies to pause the deadline clock.
    Sixth, to enhance predictability, CEQ proposed to move the text 
from paragraph (i) of 40 CFR 1501.7 (2020) to the beginning of a new 
paragraph (c) and modify the language for consistency with sections 
107(a)(2)(D) and 107(a)(2)(E) of NEPA, which require the lead agency to 
develop schedules for EISs and EAs. 42 U.S.C. 4336a(a)(2)(D), 
4336a(a)(2)(E). CEQ proposed to divide the first sentence moved from 40 
CFR 1501.7(i) (2020) into two sentences and add an introductory clause, 
``[t]o facilitate predictability,'' to reinforce the purpose of 
schedules. CEQ proposed to add ``for completion of environmental impact 
statements and environmental assessments as well as any authorizations 
required to carry out the action'' after ``the lead agency shall 
develop a schedule'' for consistency with section 107(a)(2)(D) of NEPA. 
42 U.S.C. 4336a(a)(2)(D). CEQ proposed in the second sentence to retain 
the requirement for the lead agency to set milestones for environmental 
reviews and authorizations, and add ``permits'' for consistency with 
section 107(a)(2)(D) of NEPA. 42 U.S.C. 4336a(a)(2)(D). CEQ also 
proposed in the second sentence to require agencies to develop the 
schedules in consultation with the applicant or project sponsor, and in 
consultation with and seek the concurrence of any joint lead, 
cooperating, and participating agencies.
    CEQ proposed to add a new third and fourth sentence to paragraph 
(c) to note that schedules may vary depending on the type of action; 
agencies should develop schedules based on their experience reviewing 
similar types of actions; and highlight factors listed in paragraph (d) 
that may help agencies set specific schedules to meet the deadlines.
    Finally, CEQ proposed to move the text from paragraph (j) of 40 CFR 
1501.7 (2020) regarding missed schedule milestones to the end of 
paragraph (c) and modify it to make it consistent with section 
107(a)(2)(E) of NEPA and provide clarification to enhance interagency 
communication and issue resolution. 42 U.S.C. 4336a(a)(2)(E). CEQ 
proposed to require that, when the lead or any participating agency 
anticipates a missed milestone, that agency notify the responsible 
agency (and the lead agency if identified by another agency) and 
request that they

[[Page 35488]]

take action to comply with the schedule. To emphasize the importance of 
informed and efficient decision making, CEQ proposed to require 
agencies to elevate any unresolved disputes contributing to the missed 
milestone to the appropriate officials for resolution within the 
deadlines for the individual action.
    One commenter requested that the final rule include a deadline for 
the development of a schedule. CEQ declines to include this proposal in 
the final rule. While CEQ encourages agencies to work efficiently in 
developing a schedule, CEQ recognizes that the complexity of the 
schedule will vary considerably from case to case, and defers to 
agencies to oversee the efficient and effective preparation of a 
schedule. Also, as discussed earlier in this section, commenters both 
supported and opposed the requirement for lead agencies to consult with 
applicants and consult and seek concurrence of joint lead, cooperating, 
and participating agencies when establishing schedule milestones. 
Another commenter stated that, with respect to the fifth sentence of 
paragraph (c), the final rule should require, not just recommend, 
agencies to consider all previous relevant actions and incorporate that 
information into their schedules.
    In the final rule, CEQ revises the existing text of paragraph (c) 
as proposed excluding the reference to project sponsors in favor of the 
defined term ``applicant'' in Sec.  1508.1(c)) for consistency with 
section 107(a)(2)(D) of NEPA and to ensure that agencies are 
identifying at the beginning of the process the steps they need to take 
and the timeframe in which they need to take them in order to meet the 
statutory timeframes. 42 U.S.C. 4336a(a)(2)(D). For the reasons 
articulated earlier in this section, CEQ includes the requirements for 
consultation and seeking concurrence on schedules. Next, CEQ adds a new 
sentence in the final rule to direct all agencies with milestones to 
take appropriate measures to meet the schedule. Finally, CEQ moves 
paragraph (j) of 40 CFR 1501.10 (2020) regarding missed milestones to 
the end of paragraph (c) as proposed, but further revises it for 
clarity in the final rule. CEQ simplifies the text to clarify that any 
participating agency can identify a potentially missed milestone to the 
lead agency and the agency responsible for the milestone. CEQ also adds 
``potentially'' before ``missed milestone'' in the last sentence for 
consistency of use in the sentence.
    Seventh, CEQ proposed to redesignate paragraph (c) of 40 CFR 
1501.10 (2020), addressing factors in setting deadlines, as paragraph 
(d), and make changes to the text for consistency with proposed 
paragraph (b). Specifically, CEQ proposed to change ``senior agency 
official'' to ``lead agency'' and ``time limits'' to reference ``the 
schedule and deadlines.''
    Eighth, CEQ proposed to add a new factor that the lead agency may 
consider in determining the schedule and deadlines to paragraph (d)(7): 
the degree to which a substantial dispute exists regarding the size, 
location, nature, or consequences of the proposed action and its 
effects. CEQ proposed this factor to restore and clarify a factor 
included in the 1978 regulations at 40 CFR 1501.8(a)(vii) (2019) 
regarding the degree to which the action is controversial. While the 
2020 regulations removed this factor because it overlapped with other 
factors, CEQ reconsidered its position and determined that this is an 
important factor that could have implications for establishing 
schedules and milestones. CEQ noted in the proposed rule that, in such 
instances, agencies should seek ways to resolve disputes early in the 
process, including using conflict resolution and other tools, to 
achieve efficient outcomes and avoid costly and time-consuming 
litigation later in the process. To accommodate this new factor, CEQ 
proposed to redesignate paragraph (c)(7) of 40 CFR 1501.10 (2020) to be 
paragraph (d)(8).
    One commenter suggested CEQ append ``or benefit'' to ``[p]otential 
for environmental harm'' in paragraph (d)(1). CEQ declines this change 
because ``environmental benefits'' is already covered by the factor in 
paragraph (d)(4) regarding public need. Other commenters suggested CEQ 
modify paragraph (d)(4) in the final rule to include consideration of 
the impact on the environment in addition to public need or modify it 
to reflect that the consequences of delay include cost considerations 
of short- and long-term delays. CEQ declines to make these changes 
because paragraph (d)(1) already covers potential for environmental 
harm, and CEQ interprets ``consequences of delay'' to include any cost-
related consequences to the public of short- or long-term delays.
    Regarding paragraph (d)(7), one commenter opposed the replacement 
of ``controversial'' from the 1978 regulations with ``substantial 
dispute'' asserting that ``controversial'' is well defined in case law 
as scientific rather than public controversy. The commenter further 
asserted that shifting this language could become a new source of 
dispute. CEQ disagrees and considers this change consistent with case 
law interpreting the term ``controversial,'' as used in the 1978 
regulations as distinct from general public controversy or opposition. 
See, e.g., Bark v. United States Forest Serv., 958 F.3d 865, 870 (9th 
Cir. 2020) (``A project is `highly controversial' [under the 1978 
regulations] if there is a `substantial dispute about the size, nature, 
or effect of the major Federal action rather than the existence of 
opposition to a use.' '' (quoting Native Ecosystems Council v. United 
States Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005) (alteration 
omitted)); see also Standing Rock Sioux Tribe v. U.S. Army Corps of 
Eng'rs, 985 F.3d 1032, 1042 (D.C. Cir. 2021).
    One commenter recommended the final rule add a factor to 
accommodate government-to-government consultation with Tribal Nations, 
while other commenters requested inclusion of consideration of Tribal 
consultation in developing schedules overall. In the final rule, CEQ 
adds paragraph (d)(9) for consideration of the time necessary to 
conduct government-to-government Tribal consultation. While agencies 
are already able to take this into account when building schedules, CEQ 
adds this factor to encourage agencies to ensure they are building 
sufficient time in the schedule to conduct meaningful consultation. 
Finally, CEQ adds ``court ordered deadlines'' to paragraph (d)(8), 
which lists time limits imposed on the agency, since agencies are 
sometimes conducting NEPA for actions subject to a court order.
    Ninth, CEQ proposed to redesignate paragraph (d) of 40 CFR 1501.10 
(2020) as paragraph (e), strike the text allowing a senior agency 
official to set time limits because this is superseded by the enactment 
of section 107(g) of NEPA, 42 U.S.C. 4336a(g), setting statutory 
deadlines, and replace it with a requirement for EIS schedules to 
include a list of specific milestones. CEQ proposed to strike the text 
in paragraphs (d)(1) through (d)(7) of 40 CFR 1501.10 (2020) listing 
potential time limits a senior agency official could set and replace 
them with proposed new paragraphs (e)(1) through (e)(5) to list the 
minimum milestones that an EIS schedule must include: publication of 
the NOI, issuance of the draft EIS, the public comment period, issuance 
of the final EIS, and issuance of the ROD.
    Relatedly, CEQ proposed to add new paragraphs (f) and (f)(1) 
through (f)(4) to identify the milestones that agencies must include in 
schedules for EAs: the decision to prepare an EA; issuance of

[[Page 35489]]

a draft EA, where applicable; the public comment period, where 
applicable; and issuance of the final EA and a decision whether to 
issue a FONSI or NOI to prepare an EIS.
    Multiple commenters expressed support for proposed Sec.  1501.10(e) 
and (f), asserting the changes would improve the transparency, 
timeliness, and certainty of environmental reviews. Some commenters 
suggested additional milestones to further these goals, such as the 
starting points in proposed paragraph (b)(3), specific stages of the 
review process (i.e., decision to prepare a document and issuance of a 
draft or final document), and 60-or 90-day deadlines for cooperating 
and participating agency review stages.
    CEQ declines to add additional milestones at this time. CEQ notes 
that this is a non-exhaustive list, and CEQ may issue guidance with 
recommendations for additional milestones in the future or agencies may 
elect to include additional milestones on an action-by-action basis or 
in their agency NEPA procedures.
    Tenth, CEQ proposed to redesignate paragraph (e) of 40 CFR 1501.10 
(2020) as paragraph (g) allowing an agency to designate a person to 
expedite the NEPA process, with no proposed changes to the language. 
One commenter asserted that paragraph (g) provides agencies too much 
discretion as to whether they should designate someone to expedite the 
NEPA process. The commenter suggested that, at a minimum, the paragraph 
be expanded to discuss when that role would be beneficial and set 
requirements on who can fill the role. CEQ declines additional edits to 
paragraph (g), which has been in the regulations since 1978. CEQ 
considers it appropriate to preserve agency flexibility to assign staff 
to expedite the NEPA process.
    Eleventh, CEQ proposed to strike paragraph (f) of 40 CFR 1501.10 
(2020), allowing State, Tribal, or local agencies, or members of the 
public to request a Federal agency set time limits. One commenter 
opposed the proposed removal of this paragraph, expressing concern that 
the proposal would diminish the involvement and use of information from 
States. CEQ makes this change in the final rule because the NEPA 
statute sets deadlines for EAs and EISs rendering this paragraph 
unnecessary and inconsistent with the statute. However, CEQ notes that 
State, Tribal, and local agencies have a role in the development of 
schedules to the extent they are serving as joint lead, cooperating, or 
participating agencies.
    Finally, to increase predictability and enhance agency 
accountability, CEQ proposed to add a new paragraph (h) to require 
agencies to make schedules for EISs publicly available and to publish 
revisions to the schedule. The proposal also would require agencies to 
publish revisions to the schedule and include an explanation for 
substantial revisions to increase transparency and public understanding 
of decision making and to encourage agencies to avoid unnecessary 
delays.
    One commenter expressed concern that paragraph (h) would increase 
the potential for litigation related to timelines. Another commenter 
opposed the requirement for agencies to publicly post schedules for an 
EIS, asserting that the requirement would distract from analyzing and 
disclosing significant environmental effects.
    CEQ adds paragraph (h) as proposed in the final rule. CEQ disagrees 
that making schedules publicly available will have any meaningful 
effect on the agency's analysis. CEQ also does not see litigation risk 
attached to the posting of schedules, which would not constitute a 
final agency action for purposes of judicial review, and the commenter 
did not provide an explanation as to how this might be the case.
    Multiple commenters requested clarity on what qualifies as 
``substantial'' changes to an EIS schedule. CEQ declines to include 
additional language in the rule and defers to agencies to determine 
what schedule changes are ``substantial'' and require an explanation. 
CEQ anticipates this may vary from case-to-case depending on the agency 
and the complexity of the proposed action. CEQ will continue to 
consider whether additional guidance would be helpful.
    A few commenters requested that the final rule expand paragraph (h) 
to require agencies to make EA schedules publicly available. CEQ 
declines to require agencies to publish schedules for EAs, though CEQ 
encourages agencies to do so, especially when doing so would facilitate 
public engagement. CEQ is concerned that requiring agencies to make 
schedules for all EAs publicly available could significantly increase 
the administrative burden on agencies especially since not all EAs will 
involve complex schedules, i.e., they may only include the dates for 
the decision to prepare an EA and the issuance of an EA.
    Some commenters expressed general support for Sec.  1501.10 but 
suggested additional changes arguing that there are ``loopholes'' for 
agencies to exploit or manipulate the deadlines. Commenters requested 
the regulations provide for oversight of agencies to ensure they are 
adhering to the deadlines. Another commenter suggested CEQ add 
incentives to the final rule for agencies to adhere to the timelines.
    CEQ declines to make additional revisions to address the 
commenters' suggestions. The final rule implements the statutory 
deadlines, and Congress has provided a reporting mechanism to address 
situations where agencies miss deadlines. Further, section 107(g)(3) of 
NEPA provides a mechanism for project sponsors to petition the courts 
for relief if an agency fails to meet the deadlines. 42 U.S.C. 
4336a(g)(3). The statute does not establish a mechanism for CEQ to 
enforce deadlines, and CEQ declines to revise the regulations in a 
manner that would substantially change the role that CEQ has played 
with respect to environmental reviews for decades.
    A commenter requested clarification on supplementation and whether 
or not supplemental environmental documents would affect the timeline 
of the original document. CEQ declines to add additional language to 
Sec.  1501.10 in response to this comment. In cases where an agency 
determines a supplemental draft EA or a supplemental draft EIS is 
necessary, the end point remains the final EA or final EIS. However, as 
provided in Sec.  1501.10(b), the lead agency may extend the deadline 
to provide additional time necessary to complete the final EA or final 
EIS. When an agency prepares a supplemental EA or EIS following the 
completion of a final EA or EIS, the lead agency should adhere to the 
deadlines and develop schedules for the supplemental NEPA review 
consistent with paragraph (b) and section 107(g) of NEPA. 42 U.S.C. 
4336a(g).
10. Programmatic Environmental Documents and Tiering (Sec.  1501.11)
    CEQ has encouraged agencies to engage in environmental reviews for 
broad Federal actions through the NEPA process since CEQ's initial 
guidelines issued in 1970. This continues to be a best practice for 
addressing broad actions, such as programs, policies, rulemakings, 
series of projects, and larger or multi-phase projects. CEQ developed 
guidance in 2014 on Effective Use of Programmatic NEPA Reviews,\76\ 
compiling best practices across the Federal Government on the 
development of programmatic environmental reviews. CEQ proposed to 
codify some of these principles in the CEQ regulations.
---------------------------------------------------------------------------

    \76\ CEQ, Programmatic Guidance, supra note 12.
---------------------------------------------------------------------------

    First, CEQ proposed to revise and retitle Sec.  1501.11, 
``Programmatic

[[Page 35490]]

environmental documents and tiering,'' for consistency with section 108 
of NEPA, to consolidate relevant provisions, and to add new language to 
codify best practices for developing programmatic NEPA reviews and 
tiering, which are important tools to facilitate more efficient 
environmental reviews and project approvals. 42 U.S.C. 4336b. As 
discussed further in this section, CEQ proposed to move portions of 40 
CFR 1502.4 (2020) on EISs for broad Federal actions to Sec.  1501.11 
because agencies can review actions at a programmatic level in both EAs 
and EISs.
    Several commenters expressed support for the overall proposed 
changes in Sec.  1501.11 and for use of programmatic reviews and 
tiering. These commenters asserted that programmatic reviews and 
tiering are important tools for efficiency and supported the clarity 
provided in the proposed rule on both tools. In the final rule, CEQ 
revises the title of Sec.  1501.11 and moves the text of 40 CFR 1502.4 
(2020) to Sec.  1501.11 as further described in this section.
    CEQ proposed to reorganize the paragraphs in Sec.  1506.11 to 
address programmatic environmental documents and then tiering. 
Accordingly, second, CEQ proposed to add a new paragraph (a) to address 
programmatic environmental documents. CEQ proposed to move paragraph 
(b) of 40 CFR 1502.4 (2020) to Sec.  1501.11(a) and revise the first 
sentence to clarify that agencies may prepare programmatic EAs or EISs 
to evaluate the environmental effects of policies, programs, plans, or 
groups of related activities. CEQ proposed to revise the second 
sentence to provide that programmatic environmental documents should be 
relevant to the agency's decisions and timed to coincide with 
meaningful points in agency planning and decision making; change 
``statements'' to ``documents'' to include EAs; and change ``program'' 
to ``agency'' to broaden the language for consistency with the revised 
first sentence of paragraph (a). Finally, CEQ proposed a third sentence 
in paragraph (a) to clarify that agencies can use programmatic 
environmental documents in a variety of ways, highlighting some 
examples for agencies to consider to facilitate better and more 
efficient environmental reviews.
    One commenter requested that CEQ change paragraph (a) to require 
agencies to prepare programmatic environmental documents. CEQ declines 
to require preparation of programmatic environmental documents as 
agencies need flexibility to determine when a programmatic 
environmental document is appropriate.
    Another commenter suggested CEQ add language stating if an agency 
is preparing to make a programmatic decision on a policy, program, 
plan, or group of related activities that meets other applicable 
thresholds for NEPA analysis, an agency must prepare a programmatic 
analysis commensurate with the scope of that decision. The commenter 
asserted that while it may be permissible to prepare a programmatic 
analysis when an agency is not presently making a decision, it is 
mandatory to prepare one when making a programmatic decision.
    A few commenters requested CEQ restore regulatory language from 40 
CFR 1502.4(b) (2019) stating that programmatic EISs are sometimes 
required for proposed decisions regarding new agency programs or 
regulations. The commenter stated that the 2020 rule removed this 
direction to focus the provision on the discretionary use of 
programmatic EISs in support of clearly defined decision-making 
purposes. The commenter asserted CEQ would better serve agencies and 
the public by acknowledging that programmatic EISs are sometimes 
required.
    CEQ declines to make these change in the final rule. Agencies have 
the discretion to determine whether to prepare a programmatic or non-
programmatic NEPA document to evaluate their actions, and CEQ is 
concerned that the commenter's proposals are unnecessarily prescriptive 
and declines to introduce a new concept of ``programmatic decision.''
    Third, CEQ proposed to move the list of ways agencies may find it 
useful to evaluate a proposal when preparing programmatic documents 
from paragraphs (b)(1) and (b)(1)(i) through (b)(1)(iii) of 40 CFR 
1502.4 (2020) to Sec.  1501.11(a)(1) and (a)(1)(i) through (a)(1)(iii), 
respectively. CEQ proposed to expand the list to encompass EAs as well 
as EISs. CEQ proposed to modify the beginning of paragraph (a)(1)(ii) 
to clarify ``[g]enerically'' to mean ``[t]hematically or by sector,'' 
and add technology as an example action type. CEQ proposed in paragraph 
(a)(1)(iii) to modify ``available'' to ``completed'' for clarity. CEQ 
moves these provisions and makes these revisions as proposed in the 
final rule.
    One commenter opined that the language in proposed paragraph 
(a)(i)(iii) regarding stage of technological development makes it seem 
as though environmental review must happen more quickly than accrual of 
significant investment. The commenter asserted that the accrual of 
significant investment would prejudice the review and, therefore, 
should be barred until the review takes place and suggested regulatory 
language to that effect.
    CEQ declines to modify paragraph (a)(1)(iii) to incorporate the 
commenter's proposed language. The concept the commenter proposes to 
add--to not prejudice the outcome of dependent decisions--is addressed 
in Sec.  1506.1, and it is unnecessary and potentially confusing to 
address that issue here. However, CEQ changes ``restrict later 
alternatives'' to ``limit the choice of reasonable alternatives'' to 
align the text with Sec.  1506.1(a).
    Fourth, CEQ proposed to add a new paragraph (a)(2) to provide 
examples of the types of agency actions that may be appropriate for 
programmatic environmental documents, including programs, policies, or 
plans; regulations; national or regional actions; or actions with 
multiple stages and are part of an overall plan or program. CEQ did not 
receive any comments specific to this paragraph and adds it in the 
final rule.
    Fifth, CEQ proposed to move paragraph (b)(2) of 40 CFR 1502.4 
(2020) to Sec.  1501.11(a)(3) and revise it to recommend, rather than 
require, that agencies employ scoping, tiering, and other tools to 
describe the relationship between programmatic environmental documents 
and related actions to reduce duplication. CEQ proposed to strike the 
last sentence of 40 CFR 1502.4(b)(2) (2020) stating that agencies may 
tier their analyses because tiering and programmatic environmental 
documents would now be addressed together in this section, rendering 
the language unnecessary.
    A commenter requested CEQ replace ``should'' with ``shall'' in 
paragraph (a)(3) because the discretionary language relaxes the 
standard for agencies to seek efficiencies. CEQ declines to make this 
change. While scoping is required for EISs, including programmatic 
EISs, it is not required for EAs. It also would unnecessarily constrain 
agency processes to require tiering for all programmatic environmental 
documents, particularly because at the time that an agency prepares a 
programmatic environmental document, it may not yet know whether or 
what agency actions it may consider in the future related to the 
programmatic environmental document. Rather, CEQ intends this provision 
to encourage agencies to use scoping, tiering, and other methods to 
make programmatic environmental documents more effective, efficient, 
and transparent.
    A commenter requested that CEQ add text to proposed paragraph 
(a)(3)

[[Page 35491]]

providing that programmatic documents should explain which issues the 
programmatic document analyzes and which issues the agency is 
deferring. This commenter pointed to CEQ's 2014 memorandum on use of 
programmatic NEPA reviews, which explains that the programmatic 
analysis and the decision document should explain which decisions are 
supported by the programmatic NEPA document and which decisions are 
deferred to a later time. Two commenters further requested CEQ clarify 
that tiering is required to analyze the deferred analysis of issues, 
effects, or alternatives before making a final project-level or site-
specific decision; stating that the current text is permissive in that 
it allows but does not require tiering.
    CEQ considered the comments and in the final rule revises Sec.  
1501.11(a)(3) to clarify that a programmatic document must identify any 
decisions or categories of decisions that the agency anticipates making 
in reliance on it. This direction includes any action or category of 
action that the agency anticipates making in reliance on a programmatic 
environmental document without additional analysis and any action or 
category of action the agency anticipates making after developing a 
subsequent, tiered environmental document. This provision only requires 
agencies to identify actions the agency anticipates making when it 
prepares a programmatic environmental document; it does not require 
agencies to identify every conceivable circumstance in which the agency 
could develop a tiered environmental review in the future. Including 
this information in a programmatic environmental document ensures that 
agencies are transparent about the relationship between their 
programmatic documents and any subsequent documents and decisions. 
Failure to anticipate and list a particular circumstance where a 
programmatic environmental document could inform a future decision does 
not preclude tiering to the programmatic environmental document in an 
environmental document related to that future circumstance.
    Sixth, CEQ proposed to redesignate paragraphs (a), (b), and (c) of 
40 CFR 1501.11 (2020), which address tiering, as paragraphs (b), 
(b)(1), and (b)(2), respectively, with some modifications as discussed 
further in this section. CEQ also proposed to redesignate paragraphs 
(c), (c)(1), and (c)(2) as paragraphs (b)(2), (b)(2)(i), and 
(b)(2)(ii), respectively, with no proposed modifications. CEQ proposed 
to title paragraph (b) ``Tiering.'' CEQ makes these changes in the 
final rule.
    Seventh, CEQ proposed to add two new sentences at the beginning of 
paragraph (b) to describe when agencies may employ tiering. The first 
proposed sentence would allow agencies to employ tiering with an EIS, 
EA, or programmatic environmental document relevant to a later proposed 
action. The sentence emphasizes the benefits of tiering to avoid 
duplication and focus on issues, effects, or alternatives, not fully 
addressed in the earlier document. In the existing text, CEQ proposed 
to strike as redundant the reference to issues not yet ripe for 
decision as well as the last sentence on applying tiering to different 
stages of actions. CEQ did not receive comments specific to the changes 
proposed in this paragraph and finalizes them as proposed except that 
CEQ reorders the list of documents--EISs, EAs, and programmatic 
environmental documents--in Sec.  1501.11(b)(1) for consistency with 
paragraph (b).
    Eighth, in Sec.  1501.11(b)(1) CEQ proposed to add ``programmatic 
environmental review'' to the list of documents from which agencies may 
tier. CEQ also proposed to clarify that the tiered document must 
discuss the relationship between the tiered analysis and the previous 
review; analyze site-, phase-, or stage-specific conditions and 
effects; and allow for public engagement opportunities consistent with 
the type of environmental document prepared and that are appropriate 
for the location, phase, or stage. Finally, CEQ proposed to clarify 
that the tiered document must state where the earlier document is 
``publicly'' available.
    One commenter requested CEQ clarify that tiering to a previous 
programmatic analysis is only appropriate if those analyses took the 
requisite ``hard look'' at site-specific environmental impacts. CEQ 
declines to make this change. While agencies must ensure a hard look at 
site-specific effects before finalizing a site-specific agency action, 
agencies have discretion to consider such effects in a programmatic 
environmental document or subsequent tiered documents. Multiple 
commenters requested CEQ clarify that tiered reviews must include the 
requisite site-specific analysis for the action, with some commenters 
raising concerns that agencies do not provide the necessary opportunity 
for the public to review alternatives and provide comments by using 
programmatic environmental reviews without subsequent site-specific 
reviews. CEQ agrees that tiering does not authorize an agency to avoid 
the public engagement, including any opportunity for comment, that it 
would need to do if it analyzed an action through a single 
environmental document, rather than through a tiered approach and notes 
that the text CEQ proposed in Sec.  1501.11(b)(1) addresses this issue. 
Regardless of whether an agency employs tiering, agencies must comply 
with the requirements for consideration of alternatives and public 
comments consistent with the requirements for EAs or EISs, as 
applicable.
    A few commenters expressed concern that the use of tiering would 
lead to delays in incorporating new scientific evidence into 
environmental reviews and allow agencies to circumvent the requirement 
to consider alternatives. Another commenter expressed similar concern 
that the expanded use of programmatic documents with CEs would limit 
consideration of alternatives. CEQ disagrees with the commenters' 
concerns because agencies cannot use programmatic documents or tiering 
to circumvent the requirements of NEPA, including section 
102(2)(C)(iii) requirement to consider a reasonable range of 
alternatives for actions requiring an EIS. 42 U.S.C. 4332(2)(C)(iii).
    Other commenters requested CEQ clarify certain aspects of tiering, 
including establishing bounds for use of programmatic CEs. As described 
in Sec.  1501.11(a), programmatic environmental documents may be an EA 
or EIS. As such, Sec.  1501.11 does not address programmatic CEs. 
Section 1501.4 addresses circumstances in which agencies may conduct 
programmatic reviews to establish new CEs.
    One commenter stated that the rule needs to clearly distinguish 
between tiering and supplementation and suggested CEQ could clarify the 
different approaches in Sec.  1501.11(b)(2)(ii). CEQ agrees that the 
reference to supplementation in Sec.  1501.11(b)(2)(ii) is confusing 
because supplementation is a different concept. Section 1502.9(d) sets 
forth the standard for supplementation of EISs, and agencies may 
supplement EAs at their discretion. Therefore, CEQ strikes ``a 
supplement (which is preferred)'' from the first sentence of this 
paragraph.
    CEQ makes the changes to Sec.  1501.11(b) and (b)(1) as proposed, 
though CEQ revises programmatic environmental ``review'' to 
``document'' in paragraph (b)(1) for consistency with the rest of the 
section. CEQ notes that programmatic documents can most effectively 
address later activities when they provide a description of planned 
activities that would implement the program and consider the effects of 
the program as specifically and

[[Page 35492]]

comprehensively as possible. A sufficiently detailed programmatic 
analysis with such project descriptions can allow agencies to rely upon 
programmatic environmental documents for further actions with no or 
little additional environmental review necessary. When conducting 
programmatic analyses, agencies should engage the public throughout the 
NEPA process and consider when it is appropriate to re-engage the 
public prior to implementation of the action.
    Ninth, in paragraph (c), CEQ proposed to include the provisions of 
section 108 of NEPA, which address when an agency may rely on a 
programmatic document in subsequent environmental documents. 42 U.S.C. 
4336b. CEQ notes that it interprets the reference to ``judicial 
review'' in paragraph (c)(1) to mean an opportunity for a party to 
challenge the programmatic document, including through an 
administrative proceeding or challenge brought under the Administrative 
Procedure Act. CEQ proposed in paragraph (c)(2) to require agencies to 
briefly document their reevaluations when relying on programmatic 
environmental documents older than 5 years. Two commenters opined that 
there is no incentive for an agency to prepare a programmatic 
environmental document if the statute and regulations require them to 
complete it within one or two years and then review it every five 
years. The commenters asserted that programmatic documents generally 
take longer to prepare, but the long-term benefits are worth the 
investment. The commenters are concerned that the time limits for EAs 
and EISs will result in agencies preparing fewer programmatic 
environmental documents. A separate commenter indicated that many 
agencies review programmatic documents at longer intervals than five 
years.
    CEQ appreciates the commenters' concerns but notes that the 
timeframes are statutory. CEQ encourages agencies to use programmatic 
environmental documents and tiering whenever it will result in more 
efficiency overall. CEQ also notes that a reevaluation of a 
programmatic document need not be a lengthy process especially where 
agencies can quickly and easily verify the ongoing accuracy of the 
evaluation.
    One commenter asserted that the process for reevaluation is unclear 
in the statute and in the proposed rule and asked CEQ to clarify the 
steps. The commenter requested that the regulations state that the 
tiered environmental review is what triggers the need for reevaluation 
and that it also serves as the documentation of the reevaluation.
    CEQ declines to articulate additional steps for reevaluation. The 
regulations already provide a process for reevaluation in Sec. Sec.  
1501.5 and 1502.9(e). CEQ agrees that agencies may make use of tiered 
documents to support their reevaluation. However, because of the nature 
of tiering, such documents may not assess all of the underlying 
assumptions of the programmatic document.
    Another commenter recommended that the regulations allow agencies 
to tier from programmatic documents while reevaluation is ongoing and 
requested CEQ clarify that those projects are not at risk of 
noncompliance for reliance on previous versions should the agency issue 
a new version of the document.
    CEQ declines to make these specifications in the final rule. CEQ 
agrees that a tiered document may also serve as a reevaluation of the 
programmatic document. CEQ considers the language in section 108(1) of 
NEPA to be clear that agencies may tier from a programmatic review in a 
subsequent environmental document for up to five years without 
additional analysis, and therefore any tiered documents relying on the 
programmatic document during those five years is entitled to the 
statutory presumption that no additional review is required even where 
the agency subsequently revises the programmatic document. 42 U.S.C. 
4336b(1).
    A few commenters requested that the regulations require the five-
year reevaluation for EISs and EAs be subject to public comment; that 
agencies provide public notice of the reevaluation; and that 
reevaluation of programmatic analyses be made publicly available.
    CEQ declines to make these changes to retain flexibility depending 
on the context of the reevaluation. Some reevaluations may be simple 
and not require public comment. Other reevaluations may warrant and 
benefit from public engagement, including public comment. If the agency 
finds that any assumptions are no longer valid or that the criteria for 
supplementation in Sec.  1502.9(d) are met, then the regulations 
require the agency to conduct a supplemental analysis to continue to 
rely on the programmatic review in subsequent environmental documents.
11. Incorporation by Reference Into Environmental Documents (Sec.  
1501.12)
    CEQ proposed minor modifications to Sec.  1501.12 to emphasize the 
importance of transparency and accessibility of material that agencies 
incorporate by reference. First, CEQ proposed to revise the title to 
add ``into environmental documents'' at the end to clarify into what 
agencies incorporate by reference. CEQ makes this change in the final 
rule.
    Second, CEQ proposed to add to the second sentence a specific 
requirement for agencies to briefly explain the relevance of any 
material incorporated by reference into the environmental document to 
clarify that agencies must not only summarize the content incorporated 
but also explain its relevance to the environmental review document. 
CEQ proposed this addition because explaining the relevance of 
incorporated material in addition to summarizing it will better inform 
the decision maker and the public.
    A few commenters opposed the proposed requirement for agencies to 
briefly explain the relevance of the incorporated material to the 
environmental document, asserting that the relevance of the material is 
often obvious and that requiring this explanation would add burdensome 
paperwork without additional benefit. A commenter also asserted that 
the requirement defeats the purpose of incorporating material by 
reference.
    CEQ disagrees with the commenters' assertions and makes the 
proposed addition in the final rule. CEQ adds the language to emphasize 
the importance of transparency regarding material that agencies 
incorporate by reference and rely upon as part of their analysis. 
Briefly explaining the relevance of incorporated material should not 
require substantial agency resources or lengthy text. Section 1501.11 
already requires an agency to briefly summarize material that it 
incorporates by reference; briefly explaining the relevance of the 
material does not require additional analysis, but rather, only 
requires that the agency briefly document how the material is related 
to the agency action it is reviewing in an environmental document. 
While in some cases the relevance of material incorporated by reference 
may be obvious, in such cases, briefly explaining relevance will be a 
trivial task that may require no more than a sentence. Where the 
relevance of the material is not immediately obvious, a brief 
explanation will help better inform both the public and decision 
makers. CEQ disagrees that the requirement is burdensome or 
duplicative, and encourages agencies to integrate the description of 
relevance into the summary of the material.
    Third, CEQ proposed to change ``may not'' to ``shall not'' in the 
third sentence to eliminate a potential ambiguity over

[[Page 35493]]

whether agencies must make material they incorporate by reference 
reasonably available for public inspection. One commenter supported the 
preclusion of incorporation by reference if the material is not 
reasonably available for public inspection. Another commenter requested 
that CEQ define ``reasonably available for inspection'' to clarify what 
information should be made available prior to public comment. In 
considering this comment, CEQ determined that it was more appropriate 
to revise the text in the final rule to improve clarity rather than 
define this phrasing from the 1978 regulations, and therefore changes 
``inspection'' to ``review.'' CEQ does not intend this change in 
wording to be substantive, but rather to modernize the regulatory 
language and, thereby, improve clarity of the requirement. CEQ 
anticipates that agencies will generally make this material available 
electronically or online, though it may be appropriate for agencies to 
provide physical copies in certain circumstances such as for localized 
actions where internet access or bandwidth is limited.
    Another commenter expressed support for incorporation by reference, 
but questioned whether the standard should allow agencies to 
incorporate by reference proprietary data. CEQ declines to change the 
``reasonably available for review'' standard. Incorporation by 
reference is a tool that agencies can use to improve the efficiency of 
their environmental review process. However, it cannot be used to 
circumvent the public engagement, public comment, public access, and 
transparency requirements of NEPA and these regulations, including 
section 107(c)'s requirement that for an EIS, an agency must request 
public comment on ``alternatives or impacts and on relevant 
information, studies, or analyses with respect to the proposed agency 
action.'' 42 U.S.C. 4336a(c). CEQ therefore retains the requirement 
that has been in the NEPA regulations since 1978 that prohibits 
agencies from incorporating by reference material that is not 
reasonably available for review, including proprietary data that is not 
available for review and comment.
    Another commenter recommended CEQ revise existing regulatory text 
in the third sentence. The commenter suggested CEQ replace ``within the 
time'' with ``at the beginning of and throughout the time'' asserting 
that the current language allows an agency to post documents near the 
end of the comment period. The commenter stated that documents should 
be available for the full comment period to allow for meaningful public 
review and comment. CEQ agrees that materials that are incorporated by 
reference should be reasonably available throughout the public comment 
period. CEQ is unaware of agencies incorporating by reference material 
that is not available throughout the comment period. However, CEQ 
agrees that the reasonable availability of material incorporated by 
reference is critical to the public comment process for EISs under the 
regulations and under section 107(c) of NEPA, which requires agencies 
preparing EISs to request public comment on ``relevant information, 
studies, or analyses with respect to the proposed agency action.'' 42 
U.S.C. 4336a(c). Therefore, the final rule replaces the word 
``inspection'' with ``review'' and the word ``within'' with the word 
``throughout'' to remove any ambiguity over when the materials an 
agency incorporates by reference must be reasonably available to the 
public. The final rule also adds ``or public review'' after ``comment'' 
to make it clear that the material must be available while an 
environmental document is available for public review in those cases 
where the regulations do not require an agency to seek public comment. 
CEQ makes these changes in the final rule to ensure that material 
incorporated by reference, including research publications and data, is 
openly available and accessible to the public.
    Fourth, CEQ proposed in the third sentence to add a reference to 
``publicly accessible website'' as an example of a mechanism through 
which material incorporated by reference may be reasonably available to 
the public. CEQ did not receive any comments specific to this proposed 
example. CEQ makes this change in the final rule.
    Finally, CEQ proposed to add a new fourth sentence encouraging 
agencies to provide digital references, such as hyperlinks, to 
incorporated material or otherwise indicate how the public can access 
the material for review. One commenter expressed support for the 
proposed inclusion of digital references. CEQ adds this sentence in the 
final rule.
    A few commenters expressed general support for proposed Sec.  
1501.12. Another supportive commenter appreciated the emphasis on 
transparency and accessibility of material incorporated by reference, 
but suggested CEQ establish standards for the digital format of 
environmental documents and their underlying analysis to facilitate 
interagency information sharing and collaboration. CEQ appreciates the 
comment and notes that it is currently engaged in an eNEPA study, 
consistent with section 110 of NEPA, to assesses such issues. See 42 
U.S.C. 4336d. Following the completion of that study, CEQ may issue 
guidance or consider additional rulemaking in the future to address 
these issues.
    Another commenter requested that the regulations require agencies 
to disclose if the cited material is outdated, disputed, or not fully 
proven. CEQ declines to make this change. Agencies generally have an 
obligation under Sec.  1506.6 and Sec.  1502.21 for EISs to disclose 
any relevant assumptions or limitations of the information on which 
they rely, including information incorporated by reference. Imposing a 
distinct requirement for material that is incorporated by reference is 
unnecessary and could create confusion.
    One commenter expressed agreement that incorporation by reference 
can cut down on bulk but indicated that CEQ should expand Sec.  1501.12 
to address other reasons to incorporate materials by reference, such as 
to reduce duplicative work and ensure efficient use of agency 
resources. The commenter also requested CEQ rephrase the section to 
ensure that agencies can use pre-existing documents to further the 
efficiency requirements of NEPA. While CEQ agrees that incorporation by 
reference also reduces duplicative work and facilitates efficient use 
of agency resources, CEQ does not consider it necessary to add 
additional text to the regulations to make these points as the 
regulations already emphasize efficiency and use of other documents. 
See, e.g., Sec. Sec.  1506.2, 1506.3.
    Finally, a commenter asserted the proposed rule did not 
sufficiently address avoidance of duplication between the NEPA process 
and States' environmental review and permitting processes. The 
commenter requested that CEQ clarify in Sec.  1501.12 that there is a 
presumption that agencies can incorporate by reference environmental 
studies prepared in accordance with State procedural requirements akin 
to NEPA. CEQ declines to make this change. Establishing a presumption 
that agencies can incorporate by reference States' materials would be 
confusing and is unnecessary because the language in Sec.  1501.12 
allows agencies to incorporate material generated by States, and Sec.  
1506.2 has long promoted elimination of duplication with State 
requirements.

D. Revisions To Update Part 1502, Environmental Impact Statements

    CEQ proposed to revise several sections of part 1502, as discussed 
in section II.D of the NPRM. CEQ is not implementing any substantive 
changes to Sec.  1502.3, but is revising the section title to read 
``Statutory requirements for environmental impact statements.'' CEQ

[[Page 35494]]

is not making substantive changes to Sec.  1502.6, Interdisciplinary 
preparation; Sec.  1502.18, List of preparers; Sec.  1502.19, Appendix; 
Sec.  1502.20, Publication of the environmental impact statement; Sec.  
1502.22, Cost-benefit analysis; or Sec.  1502.24, Environmental review 
and consultation requirements. CEQ received some comments on these 
sections but declines to make additional changes, as further explained 
in the Phase 2 Response to Comments.
1. Codification of 2023 GHG Guidance
    CEQ invited comment on whether it should codify any or all of its 
2023 National Environmental Policy Act Guidance on Consideration of 
Greenhouse Gas Emissions and Climate Change (2023 GHG guidance).\77\ 
CEQ also invited comment on which provisions of part 1502 or other 
provisions of the CEQ regulations CEQ should amend if a commenter 
recommended codification of part of the guidance.
---------------------------------------------------------------------------

    \77\ See CEQ, 2023 GHG Guidance, supra note 10.
---------------------------------------------------------------------------

    CEQ received numerous comments responding to this request for 
comments on codification of the 2023 GHG guidance. Comments expressed 
both support and opposition, with many commenters including general 
recommendations or considerations that did not specify what amendments 
to the rule CEQ should consider. Others identified specific text or 
concepts they recommended CEQ include. Some commenters resubmitted the 
same comments they submitted on the interim guidance, whereas others 
reiterated points they made as part of their comments on the interim 
guidance.
    Some commenters requested that CEQ incorporate quantification and 
contextualization of climate effects from the guidance into the final 
rule, with specific suggestions for adding text to Sec. Sec.  
1502.16(a)(1), 1501.3(d), and 1508.1(g). Another commenter requested 
that CEQ modify Sec.  1502.16(a)(7) to align the provision with the 
guidance for emphasizing quantification of emissions in determining 
reasonably foreseeable climate change-related effects. This commenter 
also recommended CEQ add provisions to Sec.  1501.3 recognizing that 
while there is no particular threshold for GHG emissions that triggers 
an EIS, Federal agencies should quantify, where relevant, the 
reasonably foreseeable direct and indirect GHG emissions of their 
proposed actions and reasonable alternatives and the effects associated 
with those projected emissions in the determination of significance.
    Another commenter asked that CEQ expand Sec.  1502.6(a)(7) or Sec.  
1508.1(g)(4) to include key principles from the guidance. The commenter 
provided as an example that CEQ could clarify that climate change 
related effects should include analysis of reasonably foreseeable 
direct, indirect, and cumulative GHG emissions over the expected 
lifetime of the action.
    Multiple commenters requested that CEQ add, in full, sections 
IV(B), (E), and (F); V; VI(A) through (C) and (E); and VII of the 
guidance. One commenter requested that CEQ strengthen proposed Sec.  
1502.15(b) and proposed Sec.  1502.23(c) to require consideration of 
projections based on varying emissions scenarios and related variations 
in climate change effects on the proposed action and alternatives. The 
commenter referenced information included in the 2023 GHG guidance that 
provides important information on quantifying and analyzing uncertainty 
in the long-range projects of climate change. The commenter requested 
CEQ strengthen the final rule by codifying the need to manage this 
uncertainty and analyze it; otherwise, the commenter asserted, agencies 
may unlawfully seek to minimize or avoid analysis of long-range 
projects of climate change altogether.
    One commenter requested that CEQ add consideration for 
proportionality and causality in the NEPA analysis of GHG-related 
impacts to more appropriately assign mitigation efforts to the true 
source of greenhouse gases. Another commenter suggested that CEQ 
integrate the warning against perfect substitution analysis from the 
guidance directly into the regulatory text. They also requested the 
rule include a provision on the appropriate use of the social cost of 
GHGs in climate change analyses.
    Some commenters opposed codifying any part of the 2023 GHG guidance 
for multiple reasons. Two commenters expressed that inclusion of the 
guidance in the regulations would trigger concerns on overreach of the 
authority of the administrative branch. Other commenters expressed the 
view that CEQ should not codify any parts of the guidance until CEQ 
resolves policy issues and addresses the comments submitted on the 
guidance. A few other commenters were concerned that incorporation of 
climate change would unlawfully expand the scope of NEPA analyses past 
``foreseeable effects'' and result in agencies prioritizing climate 
change above other environmental issues. One commenter expressed that 
because climate change science continues to evolve, it would be 
premature to codify the guidance and that retaining it as guidance 
would provide flexibility to continue to update the manner in which 
agencies address climate change in NEPA reviews as science evolves. 
Another commenter stated that codification of guidance would be 
arbitrary and capricious, and that NEPA was not intended to be a 
climate policy framework.
    Two commenters stated that if CEQ does decide to codify all or part 
of the 2023 GHG guidance, CEQ should issue another NPRM to provide an 
opportunity for the public to comment prior to issuing a final rule, 
consistent with the APA. Similarly, a few other commenters stated that 
CEQ did not provide enough information about how CEQ may incorporate 
the guidance, including what parts of the guidance CEQ would include, 
and that any attempt to codify the interim guidance through the final 
rule would be contrary to CEQ's obligations under the APA.
    A few commenters asserted that the guidance wrongfully elevates 
climate change and its effects, no matter how small the effect may be, 
and that this emphasis is inconsistent with the purpose of NEPA and 
recent NEPA amendments.
    After considering the comments, CEQ has determined not to revise 
the text of the proposed rule in the final rule to codify the 2023 GHG 
guidance, with the exception of one revision on quantification that was 
requested by commenters and that is included in the final rule in Sec.  
1502.16. CEQ responds to the comments summarized here in the Phase 2 
Response to Comments, and CEQ will consider these and the comments 
received on the 2023 GHG guidance during development of any final GHG 
guidance. If CEQ deems it appropriate, CEQ may consider codification of 
the 2023 GHG guidance in a future rulemaking.
2. Purpose of an Environmental Impact Statement (Sec.  1502.1)
    CEQ proposed to divide Sec.  1502.1 into paragraphs (a), (b), and 
(c) to enhance readability and amend the text in the section to restore 
the approach taken in the 1978 regulations regarding the purpose of 
EISs as they relate to NEPA.
    In proposed paragraph (a), CEQ proposed to restore language from 
the 1978 regulations clarifying that one purpose of an EIS is to 
``serve as an action-forcing device'' for implementing the policies set 
out in section 101 of NEPA by ensuring agencies consider the 
environmental effects of their action in decision making. 42 U.S.C. 
4331. CEQ proposed these changes because Congress did not enact NEPA to 
create

[[Page 35495]]

procedure for procedure's sake; rather, NEPA's procedures serve the 
substantive policies and goals Congress established and restoring the 
action-forcing language would clarify how EISs serve this broader 
function. CEQ proposed this change for consistency with the proposed 
edits in Sec.  1500.1. See section II.B.1.
    One commenter expressed support for the proposed changes in 
paragraph (a), specifying that the action-forcing language captures the 
intent of NEPA and serves the substantive policies and goals 
established by Congress. Multiple commenters opposed the proposed 
changes in paragraph (a), asserting that the language is contrary to 
the procedural approach of NEPA, and that it elevates the goals of the 
Act above the statutory requirements of other legislation. One 
commenter requested CEQ replace the proposed clause at the end of the 
sentence with language stating that the goals of NEPA cannot and do not 
supersede the requirements of other Federal statutes. Specific to the 
restoration of the action-forcing language, one commenter opposed the 
language because they do not agree that an EIS could be an action-
forcing device on its own. The commenter described that an 
environmental study could reveal information that could be action 
forcing but that an EIS itself should not be and that an EIS is a 
device used to disclose and study the environmental consequences of 
actions. Other comments expressed that the phrasing inappropriately 
inserts a substantive element into NEPA's procedural requirements.
    CEQ disagrees with the assertions of the commenters opposing this 
change and restores the language from the 1978 regulations as proposed 
in Sec.  1502.1(a). As CEQ articulated in the proposed rule, CEQ 
considers it appropriate to restore this text from the 1978 regulations 
to ensure that agencies use the information gathered and analyzed in an 
EIS in their decision-making processes. CEQ disagrees that this 
language, which was part of the 1978 regulations implemented by 
agencies and interpreted by courts for decades, imposes a substantive 
requirement inconsistent with the statute. This provision does not 
require agency decision makers to make any particular decision based on 
the information in an EIS; it only requires that the information in an 
EIS inform the agency's decision, which is consistent with NEPA, agency 
practice, and case law.
    In proposed paragraph (b), CEQ proposed minor edits for clarity and 
consistency with other changes proposed throughout the regulations. CEQ 
proposed to change ``It'' to ``Environmental impact statements'' to 
improve readability in light of the proposal to break this section into 
lettered paragraphs. CEQ also proposed to change ``significant'' to 
``important'' before ``environmental issues'' and insert ``reasonable'' 
before ``alternatives'' for consistency with similar phrasing 
throughout the regulations.
    Two commenters requested that CEQ further revise paragraph (b). One 
requested that CEQ replace ``enhance'' with ``restore and maintain'' 
because the underlying statute does not put the burden on Federal 
decision makers or project sponsors to ``enhance'' the quality of the 
human environment. This commenter pointed to 42 U.S.C. 4331(a) and the 
language ``restoring and maintaining environmental quality.'' A second 
commenter requested CEQ replace ``avoid and minimize'' with ``reduce to 
the extent practical'' to conform to the plain language of the NEPA 
statute.
    CEQ finalizes Sec.  1502.1(b) as proposed. CEQ does not consider it 
necessary to further revise this paragraph as the commenters suggested 
because this language has been in the regulations since 1978, and CEQ 
is unaware of any confusion or practical or legal problems created by 
this language. In the absence of such confusion or problem, CEQ views 
the potential cost to agencies and applicants of assessing what, if 
any, change in practice is needed to accommodate revised text as likely 
to outweigh any potential benefit of the language proposed by the 
commenters.
    In proposed paragraph (c), CEQ proposed to restore the 1978 
language clarifying that an EIS is more than a disclosure document, and 
that agencies must use EISs concurrently with other relevant 
information to make informed decisions. CEQ considers this language to 
provide important direction to agencies to ensure that EISs inform 
planning and decision making and do not serve as a perfunctory check-
the-box exercise.
    One commenter expressed support for the changes in proposed 
paragraph (c) stating that it reinforces that EISs must state how 
alternatives and decisions will or will not achieve the requirements of 
NEPA, the CEQ regulations, and other environmental laws and policies. 
Another commenter expressed that the language regarding an EIS being 
more than a disclosure document suggests that something more than a 
disclosure of environmental impacts is required to comply with the 
regulations. The commenter asserted this is contrary to NEPA's original 
intent.
    One commenter requested that CEQ delete the last sentence of the 
paragraph requiring agencies to use EISs in conjunction with other 
relevant material to plan actions and make decisions. The commenter 
asserted that the sentence is not tethered to the EIS review process 
but addresses agency efforts to plan actions and make decisions, and 
therefore, the commenter asserted, CEQ is inserting itself into ongoing 
activities beyond environmental review pursuant to NEPA.
    CEQ makes the changes as proposed in Sec.  1502.1(c) and adds 
``involve the public'' to the last sentence directing agencies to use 
other material to plan actions and make decisions. As CEQ noted 
elsewhere in this final rule, CEQ disagrees that NEPA is merely a 
check-the-box exercise, and considers it appropriate to reinforce this 
point in the regulations. CEQ also declines to exclude the proposed 
last sentence of paragraph (c). This provision does not go beyond NEPA, 
but rather emphasizes that an EIS is one of the documents agencies must 
use in their decision-making processes along with other relevant 
documents.
3. Implementation (Sec.  1502.2)
    CEQ proposed minor modifications to Sec.  1502.2. First, CEQ 
proposed to restore from the 1978 regulations the introductory 
paragraph directing agencies to prepare EISs consistent with paragraphs 
(a) through (g) to achieve the purpose established in Sec.  1502.1. 
While the 2020 rule removed this paragraph as unnecessary, upon 
reconsideration CEQ proposed to restore the language to provide clarity 
on the purpose of this section and improve readability.
    One commenter expressed support for all of the proposed revisions 
in Sec.  1502.2 to ensure that lead agencies explain in an EIS how 
alternatives and agency decisions will or will not achieve the 
requirements of NEPA, CEQ regulations, and other environmental 
policies. Further, the commenter characterized the proposed changes as 
necessary to facilitate NEPA's goals of transparency and public 
participation. CEQ appreciates the commenters' supportive statements 
and in the final rule adds the introductory paragraph to Sec.  1502.2 
as proposed.
    Next, in paragraph (b), CEQ proposed to replace the word 
``significant'' with ``important'' and add a reference to an EA for 
clarity and consistency. In paragraph (c), CEQ proposed to change 
``analytic'' to ``analytical,'' and ``project size'' to ``the scope and 
complexity of the action'' since this provision is

[[Page 35496]]

applicable to more than projects, and the length of an EIS should be 
proportional to the scope and complexity of the action analyzed in the 
document.
    One commenter expressed support for EISs being brief, concise, and 
no longer than necessary, but expressed concern over the language 
encouraging that the length of an EIS should be proportional to the 
effects and scope because this language conflicts with the page limits 
identified in Sec.  1502.7. The commenter requested CEQ delete the 
sentence discussing proportionality to resolve any confusion.
    CEQ disagrees with the commenter. The page limits provide the 
maximum length for EISs. Agencies should not automatically use every 
page allowable under the page limits and should not write documents 
longer than necessary. This statement acknowledges that some EISs may 
be less than the page limits.
    CEQ proposed to delete ``as interpreted in'' before ``the 
regulations in this subchapter'' in paragraph (d), for consistency with 
the changes in Sec. Sec.  1500.6 and 1502.9 as discussed in section 
II.B.6. The proposed rule explained that this phrase could 
inappropriately constrain agencies whose agency NEPA procedures go 
beyond the CEQ regulations. One commenter opposed the deletion of this 
language, expressing support for the inclusion of it to meet the spirit 
and flexibility of the 2020 rule.
    CEQ removes ``as interpreted in'' from paragraph (d) in the final 
rule because CEQ considers this language inappropriately constricting 
and potentially causing confusion in light of changes CEQ is making to 
other provisions of the regulations allowing agencies to tailor their 
procedures to their programs and include more specific requirements and 
suggestions. Under the revisions, EISs must state how alternatives and 
decisions will or will not achieve the requirements of NEPA, the CEQ 
regulations, and other environmental laws and policies.
    Finally, CEQ proposed to delete the word ``final'' in paragraph (f) 
because the regulations do not distinguish between a decision and final 
decision and, therefore, using the phrase ``final decision'' is 
inconsistent with use of ``decision'' elsewhere in the regulations. CEQ 
makes this change as proposed in the final rule.
4. Scoping (Sec.  1502.4)
    As discussed in section II.C.8 on Sec.  1501.9, ``Public and 
governmental engagement,'' section II.C.2 on Sec.  1501.3, ``Determine 
the appropriate level of NEPA review,'' and section II.C.10 on Sec.  
1501.11, ``Programmatic environmental document and tiering,'' CEQ 
proposed to revise Sec.  1502.4 by retitling it ``Scoping'' and moving 
provisions from 40 CFR 1501.9 (2020) to this section and moving the 
existing provisions of 40 CFR 1502.4 (2020), ``Major Federal actions 
requiring the preparation of environmental impact statements'' to 
Sec. Sec.  1501.3 and 1501.11. CEQ proposed to move the requirements of 
scoping for EISs to part 1502, which addresses the requirements 
specific to EISs, while moving requirements for determining scope 
applicable to all environmental reviews to Sec.  1501.3(b). CEQ also 
proposed to revise the provisions moved from 40 CFR 1501.9 (2020) to 
proposed Sec.  1502.4 to align scoping with related changes made on 
public engagement in Sec.  1501.9 and to add requirements focused on 
increasing efficiency in the EIS scoping process.
    As discussed further in sections II.C.8 and section II.C.10, 
commenters were generally supportive of this approach. Commenters did 
provide a few targeted comments as discussed further in this section 
and the Phase 2 Response to Comments.
    CEQ proposed these changes because it has heard from multiple 
Federal agencies that there is uncertainty over the differences between 
the scoping process required for EISs and other public involvement or 
engagement requirements for NEPA reviews more generally. By revising 
Sec.  1501.9 on public and governmental engagement and moving the 
scoping provisions to Sec.  1502.4, CEQ is emphasizing the importance 
of public engagement in the NEPA process generally, clarifying what 
requirements are specific to the scoping process for EISs, and 
clarifying what requirements and best practices agencies should 
consider regardless of the level of NEPA review.
    First, CEQ proposed to move 40 CFR 1501.9(a) (2020), outlining the 
general purpose of scoping, to Sec.  1502.4(a) and proposed to change 
the words ``significant'' and ``non-significant'' to ``important'' and 
``unimportant,'' respectively, to align with CEQ's proposed change to 
only use the word ``significant'' when describing effects, which CEQ 
indicated was a clarifying, non-substantive change. CEQ finalizes this 
paragraph as proposed with three additional changes to replace the 
paragraph heading ``Generally'' with ``Purpose,'' to more accurately 
describe the paragraph; to add use of the word ``scoping'' in the first 
sentence to make clear that this sentence is describing the purpose of 
scoping; and to change ``may'' to ``should'' in the second sentence to 
address comments requesting clarification that scoping can and should 
begin prior to issuance of the NOI. This last change also emphasizes 
the importance for agencies to begin scoping work early to facilitate 
meeting the statutory two-year deadline for completing EISs. CEQ made 
clear in the 2020 regulations that scoping should begin as soon as 
practicable, so the agency can gather the requisite information to 
allow the public to provide meaningful input on the NOI, including on 
the topics specifically identified for inclusion in the notice in Sec.  
1502.4(e)(1) through (e)(10). Agencies cannot be reasonably expected to 
have this information available to them without beginning scoping prior 
to issuance of the NOI.
    Second, CEQ proposed to move paragraph (c) of 40 CFR 1501.9 (2020) 
on scoping outreach to Sec.  1502.4(b) and add an introductory sentence 
requiring agencies to facilitate notification to persons and agencies 
that may be interested or affected by an agency's proposed action, 
consistent with the public and governmental engagement requirements in 
proposed Sec.  1501.9. CEQ finalizes this paragraph as proposed.
    Third, CEQ proposed to move paragraph (b) of 40 CFR 1501.9 (2020) 
on cooperating and participating agencies to Sec.  1502.4(c) and 
retitle it ``Inviting participation'' to better reflect that the 
paragraph covers cooperating and participating agencies as well as 
proponents of the action and other likely affected or interested 
persons. CEQ also proposed to strike the last sentence providing an 
example of when an agency might hold a scoping meeting.
    Some commenters expressed concern for the removal of the language 
requiring cooperating and participating agencies be invited and 
consulted, and noted their specific reference in the NEPA statute. CEQ 
did not intend a substantive change by modifying the paragraph heading 
and notes that Sec. Sec.  1501.7 and 1501.8 have long provided for the 
invitation of such agencies to serve as cooperating or participating 
agencies. In the final rule, CEQ adds a clause to the regulatory text 
to make clear that the invitation to Federal, State, Tribal, and local 
agencies and governments is to participate as cooperating or 
participating agencies. CEQ also notes that agencies invited to serve 
as cooperating or participating agencies should respond in a timely 
manner to facilitate the inclusion in the NOI of any information that 
these agencies may need as part of the scoping process.
    A commenter also expressed confusion about the reference to ``the

[[Page 35497]]

proponent of the action'' since that is the lead agency. This phrase, 
which has been in the regulations since 1978, refers to an outside 
party such as a project sponsor or applicant. Therefore, in this final 
rule, CEQ revises this phrase to ``any applicant'' for consistency with 
the final rule's definition of ``applicant'' and includes ``any'' since 
not all actions will involve such parties.
    Fourth, CEQ proposed to move paragraphs (f) and (f)(1) through 
(f)(5) of 40 CFR 1501.9 (2020), which addresses additional scoping 
responsibilities, to Sec.  1502.4(d) and (d)(1) through (d)(5), 
respectively. Within this list, CEQ proposed modifications to paragraph 
(d)(1) to change ``significant'' to ``important'' to align with changes 
in paragraph (a) and the use of ``significant'' throughout the 
regulations, which CEQ intended to be a clarifying, non-substantive 
change. CEQ finalizes these changes consistent with its proposal. 
Additionally, in paragraph (d)(3) of the final rule, CEQ changes 
``public'' EAs and other EISs to ``publicly available'' to clarify the 
meaning of this provision.
    Fifth, CEQ proposed to move the requirements for an NOI from 
paragraphs (d) and (d)(1) through (d)(8) of 40 CFR 1501.9 (2020) to 
Sec.  1502.4(e) and (e)(1) through (e)(8), respectively. CEQ proposed 
to delete the reference to 40 CFR 1507.3(f)(3) (2020) because CEQ 
proposed to remove that provision from the regulations, as discussed in 
section II.I.3 of the proposed rule. CEQ proposed to revise the 
language in paragraph (e)(7) for consistency with section 107(c) of 
NEPA requiring the NOI to include a request for public comment on 
alternatives or impacts and on relevant information, studies, or 
analyses, and proposed to delete the cross reference to Sec.  1502.17 
because CEQ proposed to broaden the language in Sec.  1502.17. 42 
U.S.C. 4336a(c). CEQ also proposed to delete the cross reference 
because it would no longer be necessary since CEQ proposed to remove 
the exhaustion process in 40 CFR 1500.3 (2020), which relied, in part, 
on this provision as the first step in that process. Lastly, CEQ 
proposed these edits because the purpose of scoping is to receive input 
from the public on the proposed action and alternatives as well as 
other information relevant to consideration of the proposed action, and 
CEQ considered the language in this paragraph to be redundant to the 
other required information in proposed paragraph (e). CEQ is finalizing 
these changes as proposed for the reasons set forth in the NPRM and 
this final rule. Also, CEQ revises paragraph (e)(1) to add the word 
``agency'' between ``proposed action'' to align the text with changes 
to Sec.  1502.13 and for consistency with section 107(d) of NEPA. See 
42 U.S.C. 4336a(d).
    Sixth, to this list of NOI requirements, CEQ proposed to add 
paragraph (e)(9) to require the lead agency to list any cooperating and 
participating agencies that have been identified at the time of the 
NOI, as well as any information those agencies require to facilitate 
their decisions or authorizations related to the EIS. CEQ proposed to 
add this requirement to ensure that lead and cooperating agencies 
communicate about any unique statutory or regulatory requirements of 
each agency so that the necessary information is included in the 
initial NOI and does not require re-issuance of a second NOI by the 
cooperating or participating agency. For example, the U.S. Forest 
Service's regulations regarding administrative review require the 
responsible official to disclose during the NEPA scoping process that a 
proposed project or activity or proposed plan, plan amendment, or plan 
revision is subject to one of its administrative review regulations. 36 
CFR 218.7(a), 219.52(a). When the Forest Service acts as a cooperating 
agency and the lead agency does not include the necessary information 
in the NOI, the Forest Service then must issue its own NOI, which can 
add additional time to the NEPA process. CEQ is finalizing this 
proposal consistent with the NPRM.
    Seventh, CEQ proposed to add paragraph (e)(10) to require that the 
NOI include a unique identification number for tracking purposes that 
would be carried forward in all other documents related to the action 
such as the draft and final EISs and ROD (comparable to the provision 
in Sec.  1501.5(c)(4) requiring tracking numbers for EAs). As discussed 
in greater detail in section II.C.4, CEQ proposed this provision 
because identification numbers can help both the public and agencies 
track the progress of an EIS for a specific action as it moves through 
the NEPA process. In the final rule, CEQ has retained the proposal and, 
in response to comments, added a clause to also require use of the 
unique identification numbers in any agency databases or tracking 
systems.
    Eighth, CEQ proposed to move and edit the second sentence regarding 
supplemental notices in 40 CFR 1507.3(f)(3) (2022) to paragraph (f), 
``Notices of withdrawal or cancellation,'' to require that an agency 
publish in the Federal Register a notice of withdrawal of the NOI or a 
supplemental notice to inform the public that it is no longer 
considering a proposed action and, therefore, discontinuing preparation 
of an EIS. CEQ proposed this requirement to codify common agency 
practice and to increase transparency to the public. CEQ is finalizing 
this change as proposed because agencies should publish such notices if 
they withdraw, cancel, or otherwise cease the consideration of a 
proposed action before completing a final EIS in order to provide 
notice to the public that a proposed action is no longer under 
consideration. Such a notice does not need to be lengthy, but should 
clearly reference the original NOI, name of the project in the original 
notice, unique identification number, and who to contact for additional 
information.\78\
---------------------------------------------------------------------------

    \78\ See, e.g., U.S. Forest Serv., Powell Ranger District; Utah; 
Powell Travel Management Project; Withdrawal of Notice of Intent to 
Prepare an Environmental Impact Statement, 87 FR 1109 (Jan. 10, 
2022); U.S. Army Corps of Eng'rs, Withdrawal of the Notice of Intent 
to Prepare an Environmental Impact Statement for the Carpinteria 
Shoreline, a Feasibility Study in the City of Carpinteria, Santa 
Barbara County, CA, 86 FR 41028 (July 30, 2021).
---------------------------------------------------------------------------

    Finally, CEQ proposed to move paragraph (g) of 40 CFR 1501.9 (2020) 
on NOI revisions to Sec.  1502.4(g), updating the cross references and 
changing ``significant'' to ``important'' and ``impacts'' to 
``effects,'' which CEQ indicated was a clarifying, non-substantive 
edit. CEQ makes this change in the final rule, consistent with the NPRM 
to align the text with the changes to Sec.  1502.9(d)(1)(ii).
5. Timing (Sec.  1502.5)
    CEQ proposed to make three clarifying amendments to Sec.  1502.5. 
First, in paragraph (a), CEQ proposed to add ``e.g.,'' in the 
parenthetical ``(go/no-go).'' CEQ proposed this amendment in response 
to agency feedback during the development of the proposed rule to 
clarify that the feasibility analysis and the ``go/no-go'' stage may 
not occur at the same point in time and may differ depending on what is 
included in the feasibility analysis and how the agency has structured 
that analysis. CEQ proposed this change for consistency with the 
longstanding practice that agencies have discretion to decide the 
appropriate time to begin the NEPA analysis, but also that agencies 
should integrate the NEPA process and other planning or authorization 
processes early. See Sec.  1501.2(a).
    Two commenters recommended CEQ delete the introductory paragraph of 
Sec.  1502.5 encouraging agencies to commence preparation of an EIS as 
close as practicable to the time the agency is developing or receives a 
proposal, as well as the feasibility analysis and go/no-go language in

[[Page 35498]]

paragraph (a). The commenters asserted that the feasibility analysis 
stage is generally considered an early stage of project management and 
suggested this stage was pre-proposal and therefore pre-NEPA. The 
commenters explained that this stage can and should take considerable 
time, and therefore should not be covered by the time limits, or 
agencies will likely miss the statutory deadlines. The commenters 
asserted that the NEPA process should not commence until this stage is 
completed. One of these commenters further pointed to the statutory 
definition of ``proposal'' added in 2023 and asserted this should be 
the starting point for the timing requirements for EISs and EAs. The 
commenter further asserted that CEQ should encourage pre-NEPA 
``environmental considerations'' early in agency planning and decision 
making prior to issuing a NOI to file an EIS.
    In the final rule CEQ revises Sec.  1502.5(a) to revise ``at the 
feasibility analysis (go/no-go) stage'' to instead refer to the 
feasibility analysis or equivalent stage evaluating whether to proceed 
with the project. This revised text improves the clarity of the 
sentence and recognizes that feasibility analyses are not a component 
of project authorizations for every agency. The regulations have long 
encouraged agencies to integrate NEPA into their planning and decision-
making processes. As CEQ advised in the 2020 regulatory revisions, 
agencies often begin ``pre-NEPA'' work before they make the formal 
determination to prepare an EIS by issuing a NOI. As discussed in 
section II.D.4, agencies must commence this work before issuing an NOI 
in order to meet the content requirements for an NOI. CEQ does not 
consider it necessary to delineate these phases in the regulations, as 
the commenter suggests, because agencies have decades of experience in 
developing EISs consistent with this provision, and CEQ is unaware of 
any agency concerns with or practical problems created by this 
provision.
    Second, CEQ proposed to add ``complete'' in the first sentence of 
paragraph (b) to clarify that agencies must begin preparing an EIS 
after receiving a complete application, though agencies can elect to 
begin the process earlier if they choose to do so. CEQ also proposed to 
add ``together and'' in the second sentence of paragraph (b) to clarify 
further that agencies should work ``together and with'' potential 
applicants and other entities before receiving the application. CEQ 
proposed these changes based on its experience that early conversations 
and coordination among Federal agencies, the applicant, and other 
interested entities can improve efficiencies in the NEPA process and 
ultimately lead to better environmental outcomes. Additionally, CEQ 
noted that similar to the proposed change to paragraph (a), the 
proposed changes to paragraph (b) are consistent with other directions 
in the regulations to integrate the NEPA process and other processes 
early. See Sec. Sec.  1500.5(h)-(i), 1501.2(a).
    One commenter requested CEQ revise paragraph (b) in order to ensure 
there are no unnecessary delays in proceeding. The commenter suggested 
language be added to require agencies to commence review of the 
application and decide on its completeness within 30 days and issue a 
NOI within 6 months. The commenter also requested CEQ add language 
requiring agencies to establish objective measures in their regulations 
for determining when an application is complete.
    CEQ declines to add this level of specificity in its regulations 
because the regulations apply to a broad range of agencies and 
contexts, and these specific requirements may not work for all of them. 
Instead, it is best left to agency-specific NEPA procedures or agency 
program regulations to articulate these sorts of deadlines. In the 
final rule, CEQ adds ``complete'' in paragraph (b) consistent with its 
proposal.
6. Page Limits (Sec.  1502.7)
    CEQ proposed to amend Sec.  1502.7, to align the text with section 
107(e) of NEPA, which sets page limits for EISs at 150 pages or 300 
pages for proposals of extraordinary complexity, not including 
citations or appendices. 42 U.S.C. 4336a(e). CEQ proposed to remove the 
requirement for the senior agency official of the lead agency to 
approve longer documents for consistency with the statute, which does 
not provide a mechanism to approve longer documents.
    CEQ received a number of comments on page limits. Some commenters 
expressed concerns that the page limits would prevent agencies from 
conducting the requisite analysis under NEPA. Some of those commenters 
requested that CEQ retain the provision allowing the senior agency 
official to authorize an exceedance of the page limits. Other 
commenters expressed support for the page limits and requested that CEQ 
impose additional requirements to ensure agencies do not circumvent the 
page limits. Commenters also requested CEQ define ``extraordinary 
complexity.''
    CEQ makes the changes as proposed in the final rule. The NEPA 
statute sets clear page limits for EAs and EISs and does not establish 
a mechanism for exceeding those page limits. Allowing senior agency 
officials to approve an exceedance of the page limits would undermine 
the direction in the statute and CEQ's longstanding goals of developing 
concise, readable NEPA documents that will inform the decision maker 
and the public. CEQ is confident that agencies can both meet page 
limits and fully consider the elements required by the statute and 
these regulations.
    CEQ has long encouraged and continues to strongly encourage 
agencies to prepare EISs that are both comprehensive and informative, 
as well as understandable, to the decision maker and the public. 
Agencies should consider establishing within their procedures 
mechanisms to do so that will be most effective for their programs and 
activities. These mechanisms could include placing technical analyses 
in appendices and summarizing them in plain language in the EIS; making 
use of visual aids, which are excluded from the definition of ``page'' 
provided by Sec.  1508.1(bb), including sample images, maps, drawings, 
charts, graphs, and tables; and using interactive documents, insets, 
colors, and highlights to create visually interesting ways to draw 
attention to key information and conclusions. Agencies should consider 
making EISs and technical appendices machine readable, where possible 
and feasible, to facilitate data sharing and reuse in future analyses.
7. Writing (Sec.  1502.8)
    CEQ proposed minor edits to Sec.  1502.8 to change ``may'' to 
``should'' and change ``graphics'' to ``visual aids or charts'' for 
consistency with modifications proposed in Sec.  1502.12 regarding 
visual aids or charts. One commenter expressed support for the proposed 
changes to require agencies to use plain language and encourage use of 
visual aids and charts. However, this commenter stated that use of 
visual aids and charts must be designed to be understandable to non-
technical audiences, pointing to documents they have reviewed that 
included tables that are difficult to understand.
    CEQ makes the edits as proposed in Sec.  1502.8 in the final rule. 
The CEQ regulations have long required agencies to write environmental 
documents in plain language as a means to preparing readable, concise, 
and informative documents. See, e.g., Sec. Sec.  1500.4 and 1502.8. 
Agencies commonly use visual aids, such as graphics, maps, and 
pictures, throughout their environmental documents. CEQ agrees with the 
commenters that the visual

[[Page 35499]]

aids and charts must be understandable but does not consider it 
necessary to make additional changes to the regulatory text since the 
text indicates that the purpose of visual aids and charts is to enable 
decision makers and the public to readily understand the EIS. EISs must 
be written in plain language, and this requirement would also apply to 
visual aids and charts.
8. Draft, Final, and Supplemental Statements (Sec.  1502.9)
    CEQ did not propose any substantive changes to paragraph (a) of 
Sec.  1502.9 and did not receive any comments on it. Therefore, CEQ 
finalizes paragraph Sec.  1502.9(a) as proposed.
    CEQ proposed to revise paragraph (b) addressing draft EISs by 
deleting ``as interpreted'' from the requirement that draft EISs meet 
the requirements for final EISs in section 102(2)(C) of NEPA ``as 
interpreted in the regulations in this subchapter.'' 42 U.S.C. 
4332(2)(c). CEQ proposed to delete this clause as inappropriately 
restrictive and for consistency with the same proposed change in 
Sec. Sec.  1500.6 and 1502.2. CEQ makes this change in the final rule 
for the reasons discussed in section II.B.6 with respect to deleting 
the same phrase in Sec.  1500.6.
    CEQ also proposed to add the phrase ``the agency determines that'' 
to the introductory clause of the third sentence of Sec.  1502.9(b) so 
that the beginning of the sentence would read, ``If the agency 
determines that a draft statement is so inadequate as to preclude 
meaningful analysis.'' CEQ proposed this addition to clarify that it is 
the agency preparing a draft EIS that determines a draft statement 
requires supplementation to inform its decision-making process.
    A commenter suggested additional language for the second sentence 
of paragraph (b) to clarify that a lead agency must work with a 
cooperating agency to develop the proposed action and subsequent range 
of all alternatives. Another commenter recommended CEQ add the phrase 
``may identify a preferred alternative'' to the end of Sec.  1502.9(b) 
to clarify that agencies have the authority to identify a preferred 
alternative in a draft EIS.
    In the final rule, CEQ revises paragraph (b) consistent with its 
proposed clarifying changes. CEQ declines to make the edits suggested 
by the commenters as Sec. Sec.  1501.7 and 1501.8 address the roles of 
lead and cooperating agencies, and Sec.  1502.14(d) already requires 
agencies to identify a preferred alternative or alternatives in the 
draft EIS, if one or more exists.
    In Sec.  1502.9(c), CEQ proposed to clarify that a final EIS should 
``consider and respond'' to comments rather than just ``address'' them, 
thereby restoring language from the 1978 regulations and aligning the 
language with text in Sec.  1503.4(a) regarding consideration of 
comments. The proposed rule explained that the 2020 rule did not 
explain the change from ``consider and respond'' to ``address,'' \79\ 
and CEQ is concerned that it could be read as weakening the standard 
for responding to comments within Sec.  1502.9 and in Sec.  1503.4. CEQ 
makes this change in the final rule for consistency with Sec.  
1503.4(a).
---------------------------------------------------------------------------

    \79\ See CEQ, 2020 Final Rule, supra note 39, at 43364-65.
---------------------------------------------------------------------------

    One commenter suggested that CEQ replace ``responsible opposing 
view'' in paragraph (c) with ``relevant and non-frivolous opposing 
view'' to promote transparency and remove subjectivity regarding the 
definition of ``responsible.'' In the final rule, CEQ revised paragraph 
(c) consistent with its proposed clarifying changes. CEQ declines to 
change ``responsible,'' which has been in the regulations since 1978, 
and CEQ has not heard that there is confusion regarding the meaning of 
this term or that it is creating practical problems for agencies 
implementing NEPA or the public seeking to participate in NEPA reviews. 
CEQ interprets this phrasing to mean that there is a reasoned basis for 
the opposing view, not one that is arbitrary.
    Paragraph (d) of Sec.  1502.9 and its subparagraphs address the 
standards for supplemental EISs. While CEQ did not propose changes to 
paragraph (d)(1), a commenter suggested that the phrase ``if a major 
Federal action remains to occur'' is vague. In the final rule, CEQ 
revises the text in paragraph (d)(1) addressing when an agency has to 
consider a supplemental EIS. In the 2020 rule, CEQ added a clause to 
specify that agencies prepare supplements if an action ``remains to 
occur.'' Upon further consideration, CEQ revises this phrase in the 
final rule to ``is incomplete or ongoing'' to provide more clarity and 
specifically identify the circumstances when an agency needs to 
consider supplementation. CEQ intends the phrase ``incomplete and 
ongoing'' to have the same substantive meaning as ``remains to occur,'' 
and notes that courts have used both phrases. See, e.g., Marsh v. Or. 
Nat. Res. Council, 490 U.S. 360, 373 (1989) (holding that 
supplementation may be required ``[i]f there remains major Federal 
action to occur''; Norton v. S. Utah Wilderness All., 542 U.S. 55, 73 
(2004) (citing Marsh and holding that an agency is not required to 
supplement when the action in question is ``completed,'' and is no 
longer ``ongoing'').
    In paragraph (d)(1)(ii), CEQ proposed to replace the word 
``significant'' with ``important'' and ``impacts'' with ``effects'' 
(except where ``impact'' is used as part of the term FONSI) for 
consistency, as discussed in section II.A. CEQ also proposed to add 
``substantial or'' before ``important new circumstances or 
information,'' for consistency with language in section 108(1) of NEPA, 
which confirms that an agency may rely on the analysis in an existing 
programmatic environmental document for five years without having to 
supplement or reevaluate the analysis, provided no substantial new 
circumstances or information exists. 42 U.S.C. 4336b(1).
    Two commenters indicated that the proposed rule does not align with 
the statutory language in section 108 of NEPA regarding supplementation 
and reevaluation, because that section does not include the words ``or 
important'' before ``new circumstances.'' See 42 U.S.C. 4336b. Two 
commenters opposed the replacement of ``significant'' with 
``substantial,'' expressing concern that it will increase uncertainty. 
A few commenters also requested that CEQ add definitions for 
``substantial changes,'' ``substantial or important new 
circumstances,'' and ``environmental concerns are not substantial.''
    In the final rule, CEQ revises paragraph (d)(1)(ii) by replacing 
``significant'' with ``substantial'' to track the language of section 
108(1) of NEPA requiring agencies to supplement if there are 
substantial new circumstances or information about the significance of 
adverse effects that bear on the analysis. 42 U.S.C. 4336b(1). CEQ 
interprets this language as consistent with the longstanding standard 
for supplementation and considers it a non-substantive change that 
clarifies one of the standards for supplementation of an EIS. Directly 
incorporating the language from section 108(1) of NEPA also avoids 
creating an implication that there are different supplementation 
standards for programmatic environmental documents and other 
environmental documents. As noted, the language in section 108(1) is 
consistent with longstanding practice, so there are not different 
standards for supplementation for programmatic environmental documents. 
42 U.S.C. 4336b(1). This approach also obviates the need for the 
definitions requested by commenters because agencies have extensive 
experience applying the supplementation standard.
    One commenter suggested that CEQ revise Sec.  1502.9(d)(1)(ii) to 
clarify that

[[Page 35500]]

supplementation is not limited to new environmental effects and that it 
also would apply to situations where the purpose and need or the 
alternatives are changed. CEQ declines to edit this paragraph to 
clarify this point because this scenario would be covered by the other 
criterion for supplementation in paragraph (d)(1)(i). Consistent with 
existing agency practice, agencies should continue to focus on whether 
a change to the proposed action could have environmental effects that 
have not been analyzed in determining whether changes to the proposed 
action require supplementation.
    Another commenter noted that the cross-reference to the Emergencies 
section, Sec.  1506.11, was incorrect in proposed paragraph (d)(3). In 
the final rule, CEQ fixes the cross reference and revises ``alternative 
procedures'' to ``alternative arrangements'' for consistency with the 
phrasing of Sec.  1506.11.
    CEQ proposed to redesignate paragraph (d)(4) of 40 CFR 1502.9 
(2020) as paragraph (e) of Sec.  1502.9 and title it ``Reevaluation'' 
to clarify that reevaluation is a separate tool to document new 
information when supplementation is not required. CEQ proposed to add 
in paragraph (e) that agencies may ``reevaluate'' an EIS in part to 
determine that changes to the proposed action or new circumstances or 
information relevant to environmental concerns are not ``substantial'' 
or ``that the underlying assumptions of the analysis remains valid,'' 
and therefore, the agency does not need to prepare a supplemental EIS. 
CEQ proposed this language in part for consistency with section 108(2) 
of NEPA's rule that an agency may rely on programmatic documents that 
are more than five years old if it reevaluates the underlying analysis. 
42 U.S.C. 4336b(2). However, while section 108(2) requires reevaluation 
for programmatic documents more than five years old, CEQ proposed to 
leave agencies discretion over whether and when to reevaluate non-
programmatic documents. 42 U.S.C. 4336b(1).
    One commenter requested that CEQ revise paragraph (e) to clarify 
that when agencies reevaluate their NEPA documents, supplementation is 
required if the changes are substantial or the underlying assumptions 
of the analysis do not remain valid. A couple of commenters requested 
specific wording changes, including adding ``or important'' after 
``substantial'' in the first sentence of paragraph (e) and changing 
``the agency should'' to ``the agency must document the finding.'' 
Another commenter asked CEQ to revise paragraph (e) to clarify that new 
circumstances or information in the absence of a major Federal action 
do not trigger a requirement to reevaluate an EIS. Another commenter 
recommended language to clarify that reevaluation should only be 
permitted in circumstances for which the proposed action has not 
changed physical location.
    In the final rule, CEQ revises paragraph (e) to simplify the 
paragraph on reevaluation and provide that agencies may reevaluate EISs 
to determine that supplementation is not required. This text is 
substantively the same as the proposed rule, but avoids unnecessary 
repetition of the standard for supplementation and avoids any potential 
confusion that there is an independent standard for reevaluation. 
Agencies may use reevaluation to document why a change to an action or 
new information does not require supplementation. Additionally, 
agencies may use reevaluation to conduct additional analysis to 
determine whether the change to the action or the new information meets 
either of the criteria for supplementation; in such cases, the agency 
would then prepare a supplemental EIS. Some agency procedures already 
provide such processes and Sec.  1507.3(c)(10) provides that agencies 
must include such processes in their NEPA procedures, as appropriate. 
CEQ revises the last sentence of paragraph (e) to clarify that agencies 
also may prepare a supplemental EA and FONSI to reevaluate an EIS. Some 
agencies already do this in practice, and CEQ is revising this language 
in the final rule to codify the practice.
    One commenter provided general feedback on Sec.  1502.9 
recommending CEQ include language requiring that final EISs and 
reevaluated EISs adhere to the regulatory requirements in place at the 
time the agency develops the supplement. CEQ declines to make these 
changes as agencies are in the best position to determine which 
regulatory requirements apply on a case-by-case basis, consistent with 
Sec.  1506.12, which addresses the effective date of the final rule.
9. Recommended Format (Sec.  1502.10)
    In Sec.  1502.10, CEQ proposed to revise the recommended format of 
an EIS. CEQ proposed to add cross references to the relevant regulatory 
sections at the end of paragraphs (a)(1), (a)(2), and (a)(4) through 
(a)(6). In paragraph (a)(7), CEQ proposed to strike the reference to 
``submitted alternatives, information, and analyses'' given the 
proposed revisions to Sec.  1502.17. CEQ proposed to move appendices to 
paragraph (a)(7), include the summary of scoping information required 
by Sec.  1502.17 and the list of preparers required by Sec.  1502.18 in 
appendices, rather than the main body of the EIS, and add cross 
references to the relevant regulatory sections. Therefore, CEQ proposed 
to strike paragraphs (a)(8) and (a)(9) of 40 CFR 1502.10 (2020) 
referencing the list of preparers and appendices since these lists 
would be addressed in paragraph (a)(7). Finally, CEQ proposed to revise 
paragraph (b) to require agencies to include all of the sections 
referenced in paragraph (a) if they choose to use a different format.
    CEQ received minimal comments on the proposed changes to Sec.  
1502.10, and the few comments submitted expressed support for the 
proposed changes. One commenter also requested that CEQ require the EIS 
format for EAs. CEQ makes the changes to Sec.  1502.10 as proposed. CEQ 
declines to apply this section to EAs as well because Sec.  1501.5 
already addresses the required sections of an EA.
10. Cover (Sec.  1502.11)
    CEQ proposed to revise Sec.  1502.11(a) to clarify that the list of 
``responsible agencies'' on an EIS cover are the ``lead, joint lead, 
and any cooperating agencies.'' CEQ did not receive comments specific 
to this proposal but has added the phrase ``to the extent feasible'' 
before ``any cooperating agencies'' to address the rare circumstance in 
which there may be such a large number of cooperating agencies that 
listing all of them on the cover would make the cover unreadable. In 
such circumstances, an agency may include a note on the cover that 
identifies where in the EIS a list of the cooperating agencies is 
found.
    Consistent with the proposed change in Sec.  1502.4(e)(10) to 
require a unique identification number for tracking purposes, CEQ 
proposed to amend paragraph (g) to require the cover to include the 
identification number identified in the NOI. As discussed further in 
sections II.C.4 and II.D.4, CEQ is including the requirement for unique 
identification numbers in the final rule, and therefore adds this 
requirement to Sec.  1502.11(g) as proposed. The inclusion of the 
identification number on the cover clarifies the relationships of 
documents to one another, helps the public and decision makers easily 
track the progress of the EIS as it moves through the NEPA process, and 
facilitates digitization and analysis.
    CEQ proposed to strike the requirement in paragraph (g) of 40 CFR 
1502.11 (2020) to include on the cover

[[Page 35501]]

of the final EIS the estimated preparation cost. Multiple agencies 
requested this change during development of the proposed rule. The 2020 
rule added this requirement stating that including estimated total 
costs would be helpful for tracking such costs, and that agencies could 
develop their own methodologies for tracking EIS preparation costs in 
their agency NEPA procedures.\80\ However, Federal agency commenters 
stated that agencies typically do not estimate total costs, that they 
are difficult to monitor especially when applicants and contractors are 
bearing some of the cost, that the methodology for estimating costs is 
inconsistent across agencies, and that providing these estimates would 
be burdensome. At least one agency commenter noted that agencies 
inconsistently implemented a similar requirement in E.O. 13807,\81\ 
which undermined the utility of the estimates, that tracking costs 
added a significant new burden on staff, and that it was not clear 
whether tracking such costs provided useful information for agencies or 
the public.
---------------------------------------------------------------------------

    \80\ Id. at 43329.
    \81\ E.O. 13807, supra note 14.
---------------------------------------------------------------------------

    Commenters both supported and opposed the proposal to remove the 
requirement to include the estimated preparation costs on the cover of 
the final EIS. Commenters who supported removing the requirement stated 
that the requirement added in 2020 imposed a substantial administrative 
burden on agencies and increased the length of the EIS preparation 
process because accurately tracking the total cost of preparation is 
difficult and labor-intensive. A few commenters expressed support for 
removing the requirement but suggested that, in order to facilitate 
transparency, CEQ could encourage agencies to include estimated cost 
information in the EIS, indicating this information could easily be 
included in an appendix.
    Commenters who opposed the removal expressed that the requirement 
improves transparency and accountability and also suggested that 
tracking costs can improve the efficiency of the NEPA process. One 
commenter also asserted that CEQ failed to explain why it is no longer 
necessary to fulfill the data gap that was outlined in the 2020 
rulemaking as a basis for adding the requirement.
    As stated in the proposed rule, CEQ does not consider EIS costs to 
be germane to the purpose of an EIS. Requiring that they be included on 
the cover could incorrectly lead the public and decision makers to 
believe that those costs provide information about the proposed action 
addressed in the EIS. In general, the purpose of the cover is to 
indicate the subject matter of the document and provide the public with 
an agency point of contact, provide a short abstract of the EIS, and 
indicate the date by which the public must submit comments. Further, 
CEQ was concerned that requiring agencies to calculate costs may 
unnecessarily add time and expense to the EIS preparation process, 
particularly where aspects of an environmental review serve multiple 
purposes, and allocating costs to NEPA compliance and other obligations 
may be complicated.
    CEQ recognizes the value in gathering information on overall costs, 
trends in costs, and approaches that can reduce costs, as this can 
provide a full picture of how and whether agencies are effectively 
using their resources, including to conduct environmental reviews. Each 
agency should track and monitor these costs through their own 
procedures and mechanisms and consult with CEQ about any lessons 
learned to inform CEQ's ongoing evaluation of the efficiency and 
effectiveness of the NEPA process. However, CEQ does not consider 
requiring in the NEPA regulations that agencies publish costs on the 
cover of EISs to be the appropriate mechanism to develop that 
information.
    CEQ considered the comments it received and is removing the 
requirement to include costs from paragraph (g). Removing this 
requirement does not preclude agencies from developing cost information 
or including it in an EIS if they deem it appropriate, but CEQ is 
concerned that the increased administrative burden of tracking costs, 
including the potential additional time needed to gather information, 
will unnecessarily delay NEPA processes. Further, the lack of 
consistent methodology across agencies coupled with the significant 
burden to develop consistent methodology, for which CEQ lacks the 
specialized expertise to do so, limits the utility of requiring 
agencies to present this information.
11. Summary (Sec.  1502.12)
    CEQ proposed modifications to Sec.  1502.12 to clarify the purpose 
of the summary and update what elements agencies should include in the 
summary, with a goal of creating summaries that are more useful to the 
public and agency decision makers. CEQ proposed these changes so that 
the summary would provide the public and agency decision makers with a 
clear, high-level overview of the proposed action and alternatives, the 
significant effects, and other critical information in the EIS.
    In the second sentence of Sec.  1502.12, CEQ proposed to replace 
the word ``stress'' with ``include'' in describing the contents of the 
summary to clarify that an adequate and accurate summary may include 
more than what is listed in Sec.  1502.12. Next, CEQ proposed to 
clarify that the summary should ``summarize any disputed issues,'' 
``any issues to be resolved,'' and ``key differences among 
alternatives.''
    CEQ proposed these changes to provide the public and decision 
makers with a more complete picture of the disputed issues, rather than 
focusing on ``areas of'' disputed issues, and to facilitate informed 
decision making and transparency. CEQ also proposed these edits for 
consistency with Sec.  1502.14(b), which requires agencies to discuss 
alternatives in detail. CEQ explained in the proposed rule that 
summarizing the key differences between alternatives would enhance the 
public's and decision makers' understandings of the relative trade-offs 
between the alternatives that the agency considered in detail.
    One commenter expressed concern with CEQ's proposal stating that 
summarizing ``any'' issue trivializes the analytical process and makes 
the summary more like a catalog of issues raised, regardless of how 
ill-informed or baseless the issues may be.
    CEQ finalizes the changes as proposed. CEQ disagrees with the 
commenter's interpretation of the use of the term ``any.'' CEQ's intent 
in using the qualifier ``any'' is to acknowledge that some EISs will 
not have any disputed issues or issues for resolution. It is not CEQ's 
intent for agencies to include a laundry list of every minor issue. 
Rather, CEQ intends the summary to explain the big-picture and 
important issues that the EIS addresses.
    CEQ also proposed to add language to the second sentence to require 
that the summary identify the environmentally preferable alternative or 
alternatives. CEQ proposed this addition to enhance the public's and 
decision makers' understandings of the alternative or alternatives that 
will best promote the national environmental policy, as expressed in 
section 101 of NEPA, by providing a summary of that alternative early 
on in the document. As discussed further in section II.D.13, CEQ is 
finalizing its proposal to require agencies to identify the 
environmentally preferable alternative in the EIS, and therefore 
finalizes this addition to Sec.  1502.12 as proposed.

[[Page 35502]]

    CEQ proposed to add a third sentence to Sec.  1502.12 to require 
agencies to write the summary in plain language and encourage use of 
visual aids and charts. CEQ proposed this addition to make EIS 
summaries easier to read and understand.
    One commenter expressed support for the proposed changes to require 
agencies to write the summary in plain language and to encourage use of 
visual aids and charts. However, this commenter stated that agencies 
must design their use of visual aids and charts to be understandable to 
non-technical audiences, pointing to documents they have reviewed that 
included tables that are difficult to understand.
    CEQ adds the proposed sentence to Sec.  1502.12 in the final rule. 
The CEQ regulations have long required agencies to write environmental 
documents in plain language as a means to preparing readable, concise, 
and informative documents. See, e.g., 40 CFR 1500.4 and 1502.8 (2019). 
Agencies commonly use visual aids, such as graphics, maps, and 
pictures, throughout their environmental documents. CEQ agrees with the 
commenters that visual aids and charts should be understandable but 
does not consider it necessary to make additional changes to the 
regulatory text. Section 1502.8 explains that agencies should use 
visual aids or charts in EISs so that decision makers and the public 
can readily understand them, which includes in the summary.
    Finally, similar to other changes regarding page limits, CEQ 
proposed to allow agencies flexibility in the length of a summary. CEQ 
proposed to remove the 15-page limitation on summaries and instead to 
encourage that summaries not exceed 15 pages. Although summaries should 
be brief, CEQ acknowledged with this proposed change that some proposed 
actions are more complex and may require additional pages.
    One commenter suggested that CEQ require the summary to include a 
consistency analysis that compares the proposed action and alternatives 
with applicable State and county resource management plans and State 
statutes. To accommodate their suggestion, the commenters indicated 
that the page limit might need to be adjusted to more than 15 pages.
    CEQ makes the change to the length of summaries as proposed to 
provide agencies with flexibility to vary the length of documents based 
on the complexity of the action. Because summaries count toward the 
page limits set in Sec.  1502.7, agencies have an incentive to keep 
summaries as short as possible while providing necessary information to 
the public and decision makers. While CEQ declines to require the 
summary to include a consistency analysis per the commenter's 
suggestion because it is inappropriately specific for government-wide 
regulations, the additional flexibility for length would accommodate 
such an approach, should an agency choose to do so.
12. Purpose and Need (Sec.  1502.13)
    CEQ proposed to revise Sec.  1502.13 to align the language with the 
text of section 107(d) of NEPA, which requires an EIS to include a 
statement that briefly summarizes the underlying purpose and need for 
the proposed agency action. See 42 U.S.C. 4336a(d).
    CEQ received multiple comments requesting that CEQ revise Sec.  
1502.13 to revert to the 2020 rule's language providing that when an 
agency's statutory duty is to review an application for authorization, 
the agency must base the purpose and need on the applicant's goals and 
the agency's authority. CEQ revised this language in the Phase 1 
rulemaking and declines to restore the 2020 language for the reasons 
discussed in the Phase 1 rulemaking, the Phase 1 Response to Comments, 
and the Phase 2 Response to Comments. Additionally, CEQ declines to 
include this language in the final rule because it is inconsistent with 
section 107(d) of NEPA. 42 U.S.C. 4336a(d). CEQ revises Sec.  1502.13 
as proposed.
    One commenter requested CEQ clarify that the purpose and need of a 
proposed action should define or limit the reasonableness of the range 
of alternatives, which is identified in the statutory amendments. CEQ 
addresses alternatives in Sec.  1502.14 and declines to edit this 
section to address alternatives. Another commenter requested CEQ add a 
direction for agencies to use narrow purpose and need statements that 
limit the potential reasonable alternatives. CEQ declines to make this 
change because it would be inconsistent with section 107(d) of NEPA and 
would undermine the discretion and judgment that agencies appropriately 
exercise in defining the purpose and need for their actions. See 42 
U.S.C. 4336a(d).
13. Alternatives Including the Proposed Action (Sec.  1502.14)
    CEQ proposed revisions to Sec.  1502.14 to promote the rigorous 
analysis and consideration of alternatives. To that end, CEQ proposed 
to reintroduce to Sec.  1502.14 much of the 1978 text that the 2020 
rule removed and to modernize it to ensure agency decision makers are 
well-informed. Many commenters on the Phase 1 rule requested CEQ revise 
this provision to revert to the 1978 language or otherwise revise it to 
ensure agencies fully explore the reasonable alternatives to their 
proposed actions.\82\
---------------------------------------------------------------------------

    \82\ See CEQ, Phase 1 Response to Comments, supra note 52, at 
162.
---------------------------------------------------------------------------

    First, CEQ proposed to revise the introductory paragraph of Sec.  
1502.14 to reinstate the language from the 1978 regulations that 
provided that the alternatives analysis ``is the heart of the 
environmental impact statement.'' As CEQ explained in the NPRM, while 
the 2020 rule described this clause as ``colloquial language'' to 
justify its removal,\83\ CEQ has reconsidered its position and now 
considers the language to be an integral policy statement that 
emphasizes the importance of the alternatives analysis to allow 
decision makers to assess a reasonable range of possible approaches to 
the matters before them, and notes that numerous court decisions quoted 
this language from the 1978 regulations in stressing the importance of 
the alternatives analysis. See, e.g., Wyoming v. U.S. Dep't of Agric., 
661 F.3d 1209, 1243 (10th Cir. 2011). The proposed rule also noted that 
numerous commenters on the 2020 rule and the 2022 Phase 1 rule 
supported the inclusion of this language.\84\
---------------------------------------------------------------------------

    \83\ See CEQ, 2020 Final Rule, supra note 39, at 43330.
    \84\ See, e.g., CEQ, 2020 Response to Comments, supra note 69, 
at 274; CEQ, Phase 1 Response to Comments, supra note 52, at 55.
---------------------------------------------------------------------------

    Multiple commenters supported restoring the language that describes 
the alternatives section as the heart of the EIS, citing pre-1978 case 
law and asserting that without evaluation of reasonable alternatives, 
the NEPA process loses its potential to truly inform better decision 
making. Another commenter asserted that robust analysis of the relative 
environmental effects of a range of reasonable alternatives is 
necessary to ensure the EIS serves the regulatory purpose of providing 
for meaningful public input and informed agency decision making. In the 
final rule, CEQ reinstates the language from the 1978 regulations to 
the introductory paragraph of Sec.  1502.14, as proposed.
    Second, CEQ proposed a clarifying edit in the second sentence of 
the introductory paragraph to replace ``present the environmental 
impacts'' with ``identify the reasonably foreseeable environmental 
effects'' for consistency with Sec.  1500.2(e) and section 102(2)(C)(i) 
of NEPA. 42 U.S.C. 4332(2)(C)(i). CEQ did not receive comments specific 
to this proposal and makes this change in the final rule.
    Third, in the introductory paragraph, CEQ proposed to add a third 
sentence

[[Page 35503]]

stating that the alternatives analysis should sharply define issues for 
the decision maker and the public and provide a clear basis for choice 
among the alternatives. CEQ proposed reintroducing this language from 
the 1978 regulations because it provides an important policy statement, 
concisely explaining the goals of the alternatives analysis. CEQ 
received generally supportive comments on this proposal, and CEQ makes 
this edit to the third sentence of the introductory paragraph in the 
final rule.
    Fourth, CEQ proposed in paragraph (a) to restore from the 1978 
regulations the clause that agencies must ``rigorously explore and 
objectively evaluate'' reasonable alternatives at the beginning of the 
first sentence. CEQ proposed to reinsert this language because it 
provides a standard that agencies have decades of experience applying 
in the analysis of alternatives.
    Some commenters expressed general support for restoring the 
requirement to rigorously explore and objectively evaluate reasonable 
alternatives in paragraph (a). Other commenters opposed the restoration 
of this language, asserting that it is arbitrary and subjective and has 
the potential to increase litigation over whether an agency met the 
subjective test of rigorous and objective evaluation. CEQ makes this 
change in the final rule because restoring this language will help 
ensure agencies conduct a robust analysis of alternatives and their 
effects, rather than a cursory, box-checking analysis.
    One commenter asserted that the first sentence of paragraph (a) 
should refer to the definition of ``reasonable alternatives'' to make 
it clear that alternatives proposed in scoping that do not meet the 
purpose and need and that are not technically and economically feasible 
should be eliminated from further consideration. CEQ declines to add a 
cross reference to the definition of ``reasonable alternatives'' as 
unnecessary because the phrase ``reasonable alternatives'' is a defined 
term in the regulations, and the definition applies whenever the 
regulations use the term.
    Fifth, CEQ proposed to add two additional sentences to paragraph 
(a). CEQ proposed the first sentence to clarify that agencies need not 
consider every conceivable alternative to a proposed action, but rather 
must consider a reasonable range of alternatives that fosters informed 
decision making. CEQ proposed to add this sentence to replace the first 
sentence in paragraph (f) of 40 CFR 1502.14 (2020), which required 
agencies to limit their consideration to a reasonable number of 
alternatives. CEQ proposed this language for consistency with 
longstanding CEQ guidance \85\ and to reinforce that the alternatives 
analysis is not boundless; the key is to provide the decision maker 
with reasonable options to ensure informed decision making. CEQ did not 
receive specific comments on this proposed change and adds the proposed 
new sentence to Sec.  1502.14(a).
---------------------------------------------------------------------------

    \85\ See CEQ, Forty Questions, supra note 5.
---------------------------------------------------------------------------

    CEQ also proposed a second new sentence in paragraph (a) to clarify 
that agencies have the discretion to consider reasonable alternatives 
not within their jurisdiction, but NEPA and the CEQ regulations 
generally do not require them to do so. CEQ explained that such 
alternatives may be relevant, for instance, when agencies are 
considering program-level decisions \86\ or anticipate funding for a 
project not yet authorized by Congress.\87\
---------------------------------------------------------------------------

    \86\ See, e.g., Fed. R.R. Admin., Final Program Environmental 
Impact Report/Environmental Impact Statement (EIR/EIS) for the 
proposed California High-Speed Train System (2005), https://hsr.ca.gov/programs/environmental-planning/program-eir-eis-documents-for-the-statewide-high-speed-rail-system-tier-1/final-program-environmental-impact-report-environmental-impact-statement-eir-eis-for-the-proposed-california-high-speed-train-system-2005/.
    \87\ See, e.g., U.S. Army Corps of Eng'rs, Final Environmental 
Impact Statement for Savannah Harbor Expansion Project (rev. July 
2012), https://www.sas.usace.army.mil/Missions/Civil-Works/Savannah-Harbor-Expansion/Final-Environmental-Impact-Statement/.
---------------------------------------------------------------------------

    Several commenters opposed this proposal, asserting that if an 
agency has no authority to implement an alternative, it is 
unreasonable, and the agency should not consider it. One commenter 
stated that NEPA is a procedural statute that does not confer 
substantive authority; as such, NEPA cannot authorize an agency to 
pursue an action that is otherwise not authorized. Some commenters 
characterized consideration of alternatives outside the agency's 
jurisdiction as inefficient and a waste of agency resources. Others 
expressed that allowing consideration of such alternatives would be 
contrary to law, and the alternatives would not be consistent with the 
purpose and need of the proposal. Multiple commenters stated that 
Public Citizen supports the proposition that an agency's NEPA analysis 
is properly limited by the scope of the agency's authority and that, as 
such, CEQ's proposed language is in tension with this ruling as well as 
other case law. However, other commenters stated the opposite--that 
case law has well established that agencies may and in some cases must 
consider alternatives beyond the agency's jurisdiction.
    CEQ adds this second new sentence to the end of Sec.  1502.14(a) in 
the final rule to acknowledge that in limited situations, it may be 
appropriate for an agency to consider an alternative outside its 
jurisdiction. As noted in the proposed rule, CEQ anticipates that such 
consideration will occur relatively infrequently and notes that such 
alternatives would still need to be technically and economically 
feasible and meet the purpose and need for the proposed action, 
consistent with the definition of ``reasonable alternatives.'' CEQ's 
revision is intended to strike a balance; the final rule does not 
require agencies to consider alternatives outside their jurisdiction or 
preclude agencies from doing so. Further, the final rule retains the 
qualification that the agency need only consider reasonable 
alternatives.
    Some commenters requested CEQ revise Sec.  1502.14(a) to expressly 
comply with the statutory direction that alternatives must be 
technically and economically feasible and must meet the purpose and 
need of the proposal. 42 U.S.C. 4332(2)(C)(iii). The commenters stated 
the alternatives that do not meet those criteria are not consistent 
with the statute. CEQ declines to add additional language in Sec.  
1502.14(a) because the definition of ``reasonable alternatives'' 
already includes the requirement that an alternative be technically and 
economically feasible and meet the purpose and need. CEQ addresses 
additional comments on the definition of ``reasonable alternatives'' in 
section II.J.22.
    Sixth, as noted earlier in this section, CEQ proposed to strike the 
requirement to limit consideration to a reasonable number of 
alternatives from paragraph (f) and to add a sentence to paragraph (a) 
directing agencies to consider a reasonable range of alternatives that 
fosters informed decision making. CEQ proposed to repurpose paragraph 
(f) to establish a requirement to identify the environmentally 
preferable alternative. In addition to proposing a new definition of 
``environmentally preferable alternative'' in Sec.  1508.1(l), CEQ 
proposed in this provision to describe elements that the 
environmentally preferable alternative may generally include. CEQ 
proposed to use ``or'' in the list to make clear that the 
environmentally preferable alternative need not include each delineated 
element and recognize that identifying the environmentally preferable 
alternative may entail making trade-offs in some cases. CEQ explained 
that it proposed this approach to provide agencies flexibility to rely 
on

[[Page 35504]]

their discretion and expertise to strike an appropriate balance in 
identifying the environmentally preferable alternative. Finally, CEQ 
proposed to clarify in paragraph (f) that the environmentally 
preferable alternative may be the proposed action, the no action 
alternative, or a reasonable alternative and that agencies may identify 
more than one environmentally preferable alternative as they deem 
appropriate.
    Two commenters opposed the removal of ``limit their consideration 
to a reasonable number of alternatives'' in paragraph (f), asserting 
the statement is consistent with long-standing CEQ guidance and case 
law. The commenter further opined that the proposed paragraph (f) 
unnecessarily and inexplicably creates an open question regarding the 
number of alternatives an agency must consider and is likely to result 
in delays and increase litigation risk. One commenter stated that while 
they recognize that proposed paragraph (a) states that an agency does 
not need to consider every conceivable alternative, they asserted that 
it is helpful and consistent with judicial precedent to describe what 
constitutes a ``reasonable number.'' Another commenter asserted that 
removal of this language could lead agencies to develop more 
alternatives than are reasonable or necessary under NEPA.
    CEQ declines to retain the statement that agencies must limit their 
consideration to a reasonable number of alternatives because CEQ 
considers the new sentence in paragraph (a) to provide clearer 
direction to agencies that they should consider a reasonable range of 
alternatives that foster informed decision making. Agencies have long 
had discretion to identify that range, and CEQ encourages agencies to 
identify and consider an appropriate range and explain why it 
considered and dismissed other alternatives so that agency decision 
makers and the public have a clear understanding as to how the agency 
arrived at the alternatives it considered in the document. While CEQ 
considers the new sentence in paragraph (a) to be clearer than the 
sentence previously included in paragraph (f), it does not interpret 
the new sentence to require agencies to consider a greater number of 
alternatives and does not intend for agencies to do so.
    Multiple commenters supported proposed Sec.  1502.14(f), while 
other commenters opposed it. Those who supported identification of the 
environmentally preferable alternative in the EIS expressed that 
earlier identification will provide more transparency to the public and 
allow the public an opportunity to comment on it. Some commenters also 
specifically supported the inclusion of addressing climate-change 
related effects and disproportionate and adverse effects on communities 
with environmental justice concerns in the examples of an 
environmentally preferable alternative.
    Commenters who opposed the proposed language expressed concern that 
the concept of an environmentally preferable alternative would create 
new complexity and risk for litigation. They expressed that the 
identification of such an alternative is inherently subjective and 
would result in unnecessarily broad and time-consuming environmental 
reviews not supported by the statute. One commenter contended that the 
proposed new requirement inappropriately introduces political doctrine 
into the rule. One commenter suggested that if CEQ retains the 
requirement to identify the environmental preferable alternative in the 
EIS, that the final rule should be less prescriptive about the 
attributes of the environmentally preferable alternative.
    CEQ adds the requirement to identify the environmentally preferable 
alternative or alternatives in the EIS in Sec.  1502.14(f), and adds a 
clause to clarify that the agency must identify the environmentally 
preferable alternative from amongst the alternatives considered in the 
EIS. CEQ adds this clarification to address a misunderstanding by some 
of the commenters that the environmentally preferable alternative or 
alternatives that Sec.  1502.14(f) requires agencies to identify is an 
additional alternative to the proposed action, no action, and 
reasonable alternatives that the agency would otherwise consider in an 
EIS. Rather, this provision requires agencies to identify which 
alternative amongst the proposed action, no action, and reasonable 
alternatives is the environmentally preferable alternative.
    CEQ disagrees that requiring agencies to identify the 
environmentally preferable alternative in the EIS requires an 
inherently subjective determination, would result in unnecessarily 
broad and time-consuming environmental reviews, or introduces political 
doctrine. As CEQ noted in the proposed rule, the regulations have 
always required agencies to identify the environmentally preferable 
alternative in a ROD. 40 CFR 1505.2 (2019) and 40 CFR 1505.2 (2020). 
Agencies, therefore, have decades of experience with identifying the 
environmentally preferable alternative.
    Moreover, CEQ views this information as helpful for decision makers 
and the public. Requiring agencies to identify the environmentally 
preferrable alternative in the draft EIS will enable public comment on 
this determination, which can include comment on whether the agency has 
adequately explained its conclusion or whether the determination is 
overly subjective. This new provision provides additional guidance on 
what this alternative entails, improving consistency and furthering 
NEPA's goal of ensuring that agencies make informed decisions regarding 
actions that impact the environment. Additionally, requiring the draft 
and final EIS to identify the environmentally preferable alternative 
will increase the transparency of the agency's decision-making process 
at an earlier stage, as well as provide an opportunity for the public 
to comment on the environmentally preferable alternative before the 
agency makes its decision.
    CEQ disagrees that merely requiring agencies to identify which 
alternative or alternatives are environmentally preferable in the EIS, 
rather than only in the ROD, will increase litigation. The requirement 
in the final rule shifts the timing of identifying the environmentally 
preferred alternative or alternatives, but commenters have not 
explained why requiring agencies to make this identification earlier in 
the decision-making process would increase litigation risk, and CEQ 
does not view this shift as materially affecting litigation risk, since 
claims alleging a violation of NEPA must be brought after an agency 
issues a ROD. See, e.g., Oregon Nat. Res. Council v. Harrell, 52 F.3d 
1499, 1504 (9th Cir. 1995). CEQ also notes the regulations do not 
require agencies to select the environmentally preferable alternative, 
just as the long-standing requirement for agencies to identify the 
environmentally preferable alternative in a ROD did not. Rather, 
identifying the environmentally preferable alternative will increase 
transparency and allow the public to comment on it.
    Some commenters expressed that, overall, the proposed changes to 
Sec.  1502.14 expand the alternatives analysis and could interfere with 
agencies' ability to meet the page and time limits. CEQ disagrees with 
the commenters' assertions because the revised regulations clarify, 
rather than expand, the requirements for alternatives analysis.
    While CEQ did not propose edits to Sec.  1502.14(b), one commenter 
requested that CEQ restore the 1978 language to ensure agencies devote 
substantial treatment to each alternative they considered in detail. 
The 2020 rule removed the substantial treatment

[[Page 35505]]

language and replaced it with the requirement to discuss each 
alternative. The commenter asserted that CEQ should restore this 
language because restoring direction to rigorously explore and 
objectively evaluate reasonable alternatives would ensure agencies take 
a hard look at their proposed action. CEQ declines to add this 
language. The language that CEQ adds to paragraph (a), requiring 
agencies to rigorously explore and objectively evaluate alternatives to 
foster informed decision making, addresses this concern and provides 
agencies sufficient direction to take a hard look at their proposed 
actions and alternatives.
14. Affected Environment (Sec.  1502.15)
    CEQ proposed revisions to Sec.  1502.15 to emphasize the use of 
high-quality information; clarify considerations of reasonably 
foreseeable environmental trends; and emphasize efficiency and concise 
documents. CEQ also proposed to divide Sec.  1502.15 into separate 
lettered paragraphs.
    First, CEQ proposed to move the first sentence of 40 CFR 1502.15 
(2020) into paragraph (a) of Sec.  1502.15 but did not propose any 
changes to the text. One commenter suggested changes to proposed 
paragraph (a) to more clearly describe that the affected environment 
must be a clear, unambiguous base case against which the agency can 
compare all effects equally and noted a particular example in which, 
the commenter asserted, confusion about this point had resulted in 
distorted analyses for a category of actions that did not provide the 
agency decision maker and the public an appropriate comparison of the 
proposed actions, no action alternatives, and reasonable alternatives. 
In the final rule, CEQ deletes ``or created'' in the first sentence 
because areas created by the proposed action or alternatives would 
constitute reasonably foreseeable effects, and are not part of the 
affected environment. CEQ notes, however, that the affected environment 
cannot be frozen in time and therefore must examine reasonably 
foreseeable environmental trends in the affected areas.
    Second, CEQ proposed to add new paragraph (b) to encourages 
agencies to use high-quality information, including best available 
science and data--in recognition that high-quality information should 
inform all agency decisions--to describe reasonably foreseeable 
environmental trends. CEQ also proposed to note explicitly that such 
trends include anticipated climate-related changes to the environment 
and that agencies should provide relevant information, consistent with 
Sec.  1502.21, when such information is lacking. CEQ proposed this 
paragraph to articulate clearly NEPA's statutory mandate that science 
inform agencies' decisions as part of a systematic, interdisciplinary 
approach. See 42 U.S.C. 4332(2)(A).
    In the second sentence of paragraph (b), CEQ proposed to encourage 
agencies to use the description of baseline environmental conditions 
and reasonably foreseeable trends to inform its analysis of 
environmental consequences and mitigation measures by connecting the 
description of the affected environment with the agency's analysis of 
effects and mitigation. CEQ proposed this language to clarify that 
agencies should consider reasonably foreseeable future changes to the 
environment, including changes of climate conditions on affected areas, 
rather than merely describing environmental trends or climate change 
trends at the global or national level. When describing the proposed 
changes to paragraph (b) in the proposed rule, CEQ noted that, in line 
with scientific projections, accurate baseline assessment of the 
affected environment over an action's lifetime should incorporate 
forward-looking climate projections rather than relying on historical 
data alone.
    A few commenters opposed proposed Sec.  1502.15(b), with some 
commenters particularly taking issue with the singling out of climate 
change. A few commenters requested that the final rule require agencies 
to use high-quality information, with some further requesting that the 
regulations define high-quality information. One commenter expressed 
that it will be nearly impossible to use best available science, and 
another requested that Indigenous Knowledge be included as a source of 
high-quality information.
    CEQ adds proposed Sec.  1502.15(b) in the final rule with a few 
modifications. In the first sentence, CEQ changes ``should'' to 
``shall'' before ``use high-quality information'' for consistency with 
Sec.  1506.6 (proposed as Sec.  1502.23) and modifies the clause 
providing examples of high-quality information for consistency with the 
changes to the examples CEQ makes in Sec.  1506.6, as discussed in 
section II.H.4. The final rule includes ``reliable data and resources, 
models, and Indigenous Knowledge'' as examples of high-quality 
information in lieu of the proposed phrase ``including the best 
available science and data.'' As noted in section II.H.4, this change 
incorporates the language of section 102(2)(E) of NEPA and is 
consistent with section 102(2)(D) of NEPA. 42 U.S.C. 4332(2)(D)-(E). 
Peer-reviewed studies and models are examples of reliable data and 
resources.\88\ The final rule also replaces ``lacking'' with 
``incomplete or unavailable'' for consistency with the language of 
Sec.  1502.21, which the sentence cross-references. CEQ declines to 
remove the example of climate change from this sentence. Because 
climate change has implications for numerous categories of effects--
from species to water to air quality--it is a particularly important 
environmental trend for agencies to consider in addressing the affected 
environment.\89\ See 42 U.S.C. 4321, 4331, 4332(2)(C)(iv). Lastly, CEQ 
includes the third proposed sentence in the final rule but uses 
``affected environment'' instead of ``baseline'' and describes existing 
``environmental conditions, reasonably foreseeable trends, and planned 
actions in the area'' as examples of the affected environmental that 
should inform the agency's analysis of environmental consequences and 
mitigation measures.
---------------------------------------------------------------------------

    \88\ See, e.g., OMB, Guidelines for Ensuring and Maximizing the 
Quality, Objectivity, Utility, and Integrity of Information 
Disseminated by Federal Agencies, 67 FR 8452 (Feb. 22, 2002); OMB, 
Final Information Quality Bulletin for Peer Review, 70 FR 2664 (Jan. 
14, 2005); and OMB, M-19-15, Improving Implementation of the 
Information Quality Act (2019), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf.
    \89\ See, e.g., U.S. Glob. Change Rsch. Program, Fifth National 
Climate Assessment (2023), https://nca2023.globalchange.gov.
---------------------------------------------------------------------------

    Third, CEQ proposed to move the second through fourth sentences of 
40 CFR 1502.15 (2020) to new paragraph (c) and revise the second 
sentence to divide it into two sentences to enhance readability. In the 
first sentence of paragraph (c), CEQ proposed minor revisions to 
clarify that agencies may combine the affected environment and 
environmental consequences sections in an EIS. In the second sentence, 
CEQ proposed to clarify that the description ``should,'' rather than 
``shall'', be no longer than necessary to understand the ``relevant 
affected environment'' and the effects of the alternatives.
    One commenter disagreed with allowing agencies to combine the 
affected environment and environmental consequences sections of the 
EIS. The commenter asserted that agencies should discuss the two issues 
separately so that it is clear in the EIS how much attention is paid to 
each section and in order to ``force the agency to present actual'' 
effects in the EIS. The commenter asserted that agencies will provide 
more material on the affected environment instead of describing 
effects.
    CEQ makes the change as proposed in Sec.  1502.15(c) of the final 
rule. The final rule allows but does not require

[[Page 35506]]

agencies to combine the description of the affected environment with 
the analysis of environmental consequences. CEQ added this provision in 
the 2020 regulations to promote more efficient documents, and CEQ 
encourages agencies to reduce redundancy in their documents and provide 
clear and concise but thorough descriptions in the EIS. CEQ disagrees 
that allowing agencies to combine these discussions also allows them to 
give more weight to one section or the other. Agencies must thoroughly 
discuss both the affected environment and the environmental 
consequences of their proposed actions and alternatives to meet the 
requirements of both Sec. Sec.  1502.15 and 1502.16.
15. Environmental Consequences (Sec.  1502.16)
    CEQ proposed several changes to Sec.  1502.16 to clarify the role 
of this section and methods of analysis and make updates to ensure that 
agencies integrate climate change and environmental justice 
considerations into the analysis of environmental effects. First, CEQ 
proposed to add ``reasonably foreseeable'' in proposed paragraph (a)(1) 
before ``environmental effects'' for consistency with section 
102(2)(C)(i) of NEPA and in proposed paragraph (a)(2) before ``adverse 
environmental effects'' for consistency with section 102(2)(C)(ii) of 
NEPA. 42 U.S.C. 4332(2)(C)(i)-(ii). In the final rule, CEQ reorganizes 
Sec.  1502.16 to integrate proposed paragraph (a)(1) into Sec.  
1502.16(a), as discussed further in this section, and adds the 
reference to ``reasonably foreseeable'' effects in paragraph (a) to 
make clear that agencies must discuss the environmental consequences 
described in paragraphs (a)(1) through (a)(13) when they are reasonably 
foreseeable effects of the proposed action or alternatives. Therefore, 
CEQ omits further references to ``reasonably foreseeable'' in 
paragraphs (a)(1) through (a)(13) to avoid duplication. The recent 
amendments to NEPA codified the longstanding principle from the 1978 
regulations and recognized by the courts that effects must be 
reasonably foreseeable. CEQ also notes that the definition of 
``effects'' in Sec.  1508.1(i) incorporates ``reasonably foreseeable'' 
into the definition such that the term ``effects'' incorporates the 
reasonably foreseeable standard each time it is used in this section 
and throughout the regulations.
    Second, in proposed paragraph (a)(1), CEQ proposed to modify the 
second sentence, requiring agencies to base the comparison of the 
proposed action and reasonable alternatives on the discussion of 
effects, to add a clause at the end: ``focusing on the significant or 
important effects.'' CEQ proposed this change to emphasize that 
agencies' analyses of effects should be proportional to the 
significance or importance of the effects. CEQ did not receive specific 
comments on this proposal, and CEQ makes this change in the final rule 
in paragraph (a), into which CEQ integrates proposed paragraph (a)(1) 
as discussed further in this section. CEQ includes the word 
``important'' in addition to ``significant'' because even if an agency 
does not identify which effects rise to the level of significance, it 
should still focus on the effects that are important for the agency 
decision maker to be aware of and consider. Consistent with this 
provision, agencies should generally identify the effects they deem 
significant to inform the public and decision makers.
    While CEQ did not propose any substantive changes to paragraph (a), 
a few commenters suggested changes. One commenter expressed that even 
though paragraph (a) specifies that the environmental consequences 
discussion should not duplicate discussions from Sec.  1502.14, it is 
confusing and unnecessary for the regulations to essentially require 
the same information in both sections. Another commenter requested that 
CEQ add qualifying language, ``as relevant or appropriate'' to the last 
sentence of paragraph (a) stating that ``[t]he discussion shall 
include.'' The commenter asserted this language would help improve 
efficiency by providing lead agencies flexibility to tailor the EIS to 
the specifics of the action.
    CEQ agrees with the commenter that the language in paragraph (a) 
could be confusing. To enhance clarity, the final rule integrates 
proposed paragraph (a)(1) into Sec.  1502.16(a) and combines the first 
two sentences of proposed paragraph (a)(1), to require that the 
comparison of the proposed action and alternatives ``be based on their 
reasonably foreseeable effects and the significance of those effects'' 
and that this discussion focus on the significant and important 
effects. The final rule also consolidates the last two sentences of 
proposed paragraph (a) to state that the environmental consequences 
section should not duplicate discussions ``required by'' Sec.  1502.14, 
which CEQ revises to address the commenter's confusion about this text, 
and must include ``an analysis of'' the issues discussed in the 
subparagraphs to paragraph (a).
    CEQ declines to add the qualifier ``as relevant or appropriate'' to 
the last sentence, because some of the items in the list are always 
required. For paragraphs (a)(5) through (a)(10) and (a)(13), which are 
only required when they are reasonably foreseeable, the final rule adds 
the qualifier ``where applicable''--in some cases replacing the word 
``any,'' as used in the proposed rule--to make clear that an EIS need 
only include the specific topics where those effects are reasonably 
foreseeable. Where the effects that relate to a particular topic in the 
list exist but are not significant or important, the EIS can briefly 
describe the effect and explain why the agency has reached the 
conclusion that it is not significant or important.
    Third, CEQ proposed to add a new sentence to the end of proposed 
paragraph (a)(1) clarifying the proper role of the no action 
alternative to ensure that agencies do not distort the comparative 
analysis by selecting a different alternative (for example, the 
preferred alternative) as the baseline against which the agency 
assesses all other alternatives. CEQ also invited comment on whether it 
should include additional direction or guidance regarding the no action 
alternative in the final rule.
    One commenter requested that the regulations clarify the proper 
role of the no action alternative and disagreed with the direction 
included in the proposed rule. The commenter asserted that establishing 
a no action alternative as the baseline against which alternatives are 
compared, rather than establishing the proposed action as the baseline, 
favors the no action alternative over the proposed action and is 
contrary to NEPA's goals of informing rather than driving decisions. 
CEQ disagrees with the commenter's position as agencies have long used 
the no action alternative as the baseline from which to assess the 
proposed action and alternatives,\90\ and this approach is consistent 
with the requirement of section 102(2)(C)(i)-(ii) of NEPA that an EIS 
include the reasonably foreseeable environmental effects of the 
proposed agency action. 42 U.S.C. 4332(2)(C)(i)-(ii). The no action 
alternative is a particularly useful comparison for the effects of the 
proposed action, and the CEQ

[[Page 35507]]

regulations require agencies to compare effects across alternatives.
---------------------------------------------------------------------------

    \90\ See CEQ, Forty Questions, supra note 5, Question 3, ``No 
Action Alternative'' (stating that the no action alternative 
``provides a benchmark, enabling decisionmakers to compare the 
magnitude of environmental effects of the action alternatives.''); 
see also Ctr. for Biological Diversity v. United States DOI, 72 
F.4th 1166, 1185 (10th Cir. 2023) (```In general, NEPA analysis uses 
a no-action alternative as a baseline for measuring the effects of 
the proposed action.''' (quoting Biodiversity Conservation All. v. 
U.S. Forest Serv., 765 F.3d 1264, 1269 (10th Cir. 2014)).
---------------------------------------------------------------------------

    Multiple commenters requested guidance on how to evaluate the no 
action alternative in circumstances in which the Federal action does 
not dictate whether the underlying project will occur. CEQ declines to 
add additional specifications to the regulations but will consider 
whether additional guidance on this topic will help agencies carry out 
their NEPA responsibilities. CEQ notes that agencies have decades of 
experience with this issue even prior to the addition of this provision 
into NEPA and the CEQ regulations.
    One commenter requested CEQ revise the language to make it clear 
that the no action alternative is focused on the environmental 
consequences of not issuing the approval rather than on the proposed 
facility not being built or the proposed physical action not occurring. 
CEQ declines to add this specific additional language to the 
regulations as the consideration of the no action alternative is 
specific to the agency's authority and the scope of the NEPA review.
    One commenter stated CEQ should provide additional guidance to 
ensure that Federal agencies fully disclose the environmental 
implications of the no action alternative. Another commenter requested 
CEQ provide additional guidance encouraging agencies to select the no 
action alternative, when appropriate. Relatedly, another commenter 
stated that the no action alternative should be more than a baseline 
for comparison; it should also be an alternative that the agency can 
select even if it does not meet the applicant's or project's purpose 
and need. CEQ agrees that in many cases, the no action alternative is 
among the alternatives that the agency may select, and that doing so is 
consistent with the regulations and long-standing agency practice, but 
this is a fact-specific inquiry based on the agency's authority. CEQ 
will consider this and the other recommended topics when developing 
guidance.
    One commenter requested the regulations include a new section on 
the no action alternative instead of including it in Sec.  1502.16. 
Another commenter requested the regulations include a definition of 
``no action alternative'' and requested clarification that agencies 
should analyze more than one action alternative and therefore must 
include more than just the no action alternative and one action 
alternative. CEQ declines to add a separate section on or define the 
phrase ``no action alternative.'' CEQ includes the proposed language in 
the final rule, as the fourth sentence of paragraph (a), to provide 
additional context for the longstanding requirement in Sec.  1502.14 to 
assess the no action alternative and for consistency with section 
102(2)(C)(iii) of NEPA and longstanding agency practice. 42 U.S.C. 
4332(2)(C)(iii).
    Fourth, CEQ proposed to add a new paragraph (a)(3), requiring an 
analysis of the effects of the no action alternative, including any 
adverse environmental effects. CEQ proposed this change for consistency 
with section 102(2)(C)(iii) of NEPA, which requires ``an analysis of 
any negative environmental impacts of not implementing the proposed 
action in the case of a no action alternative.'' 42 U.S.C. 
4332(2)(C)(iii).
    One commenter suggested that the phrase ``including any adverse 
effects'' does not conform with section 102(2)(C)(iii) of NEPA. CEQ 
disagrees with the commenter's characterization. The difference in 
phrasing between proposed paragraph (a)(3) and section 102(2)(C)(iii) 
is because paragraph (a)(3) addresses what needs to be contained in the 
discussion of environmental consequences, while section 102(2)(C)(iii) 
of NEPA addresses the range of alternatives. 42 U.S.C. 4332(2)(C)(iii). 
Multiple commenters were generally supportive of the requirement to 
analyze the adverse effects of the no action alternative.
    CEQ adds proposed paragraph (a)(3) in the final rule at Sec.  
1502.16(a)(2). As CEQ noted in the proposed rule, CEQ interprets 
``negative'' to have the same meaning as the term ``adverse.'' For 
example, an environmental restoration project that helps mitigate the 
effects of climate change and restores habitat could have adverse 
effects if it were not implemented or the construction of a commuter 
transit line could have adverse effects from persistent traffic 
congestion, air pollution, and related effects to local communities if 
it were not implemented.
    Fifth, to accommodate proposed new paragraph (a)(3), CEQ proposed 
to redesignate paragraphs (a)(3) through (a)(5) of 40 CFR 1502.16 
(2020) as paragraphs (a)(4) through (a)(6), respectively. CEQ did not 
receive any comments on this proposed reorganization. However, because 
the final rule integrates proposed paragraph (a)(1) into paragraph (a), 
the final rule does not redesignate these paragraphs.
    Sixth, in proposed paragraph (a)(5), CEQ proposed to insert 
``Federal'' before ``resources'' for consistency with section 
102(2)(C)(v) of NEPA. 42 U.S.C. 4332(2)(C)(v). One commenter asserted 
that the proposed insertion of ``Federal'' ignores analysis and 
reporting of potentially significant resources committed by other 
entities. CEQ adds the word ``Federal'' to the final rule in Sec.  
1502.16(a)(4) because Congress added it to the corresponding phrase in 
the statute. Another commenter suggested CEQ revise this paragraph to 
encompass resources held in trust. CEQ declines to make this addition, 
as CEQ interprets the phrase ``Federal resources'' to plainly mean 
resources owned by the Federal Government or held in trust for Tribal 
Nations.
    Seventh, CEQ proposed to add references to two specific elements 
that agencies must include in the analysis of environmental 
consequences and revise the reference to another element, all related 
to climate change. CEQ proposed to revise proposed paragraph (a)(6), 
addressing possible conflicts between the proposed action and the 
objectives of Federal, regional, State, Tribal and local land use 
plans, policies, and controls for the area concerned. CEQ proposed to 
broaden ``land use plans'' to ``plans'' generally and to add an example 
that clarifies that these plans, policies, and controls include those 
addressing climate change.
    Eighth, CEQ proposed to add a new paragraph (a)(6) to clarify that 
the discussion of environmental consequences in an EIS must include any 
reasonably foreseeable climate change-related effects, including 
effects of climate change on the proposed action and alternatives 
(which may in turn alter the effects of the proposed action and 
alternatives).
    Ninth, CEQ proposed to add a new paragraph (a)(9) to require 
agencies to address any risk reduction, resiliency, or adaptation 
measures included in the proposed action and alternatives. CEQ proposed 
this addition to ensure that agencies consider resiliency to the risks 
associated with a changing climate, including wildfires, extreme heat 
and other extreme weather events, drought, flood risk, loss of historic 
and cultural resources, and food scarcity. CEQ noted in the proposed 
rule that these analyses further NEPA's mandate that agencies use ``the 
environmental design arts'' in decision making and consider the 
relationship between the ``uses'' of the environment ``and the 
maintenance and enhancement of long-term productivity.'' 42 U.S.C. 
4332(2)(A), 4332(2)(C)(iv). CEQ also noted that the proposed change 
helps achieve NEPA's goals of protecting the environment across 
generations, preserving important cultural and other resources, and 
attaining ``the widest range of beneficial uses of the environment 
without degradation, risk to health or safety, or

[[Page 35508]]

other undesirable and unintended consequences.'' 42 U.S.C. 4331(b)(3).
    Multiple commenters expressed support generally for both proposed 
paragraphs (a)(6) and (a)(7), asserting that it is necessary to 
emphasize climate change. On the other hand, one commenter opposed 
proposed paragraphs (a)(6) and (a)(7) and asserted that they are based 
on political doctrine rather than scientific and technical analyses. 
CEQ disagrees with the commenter's assertion and notes that the 
inclusion of climate change in proposed paragraphs (a)(6) and (a)(7) is 
consistent with section 102(2)(C)(i) of NEPA, 42 U.S.C. 4332(2)(C)(i), 
which requires agencies to address ``reasonably foreseeable 
environmental effects of the proposed agency action;'' with section 
102(2)(I) of NEPA, 42 U.S.C. 4332(I), which requires Federal agencies 
to ``recognize the worldwide and long-range character of environmental 
problems;'' and with a large volume of case law invalidating NEPA 
analyses that failed to adequately consider reasonably foreseeable 
effects related to climate change. See e.g., Vecinos para el Bienestar 
de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021) (holding 
NEPA analysis for pipeline and liquified natural gas port deficient due 
to inadequate climate change analysis); WildEarth Guardians v. Zinke, 
368 F.3d 41 (D.C. Cir. 2019) (invalidating oil and gas leases for 
failure to consider downstream greenhouse gas emissions during the NEPA 
process); and WildEarth Guardians v. BLM, 870 F.3d 1222 (10th Cir. 
2017) (holding that EIS and ROD for four coal leases were arbitrary and 
capricious because they failed to adequately consider climate change).
    With respect to proposed paragraph (a)(6), a couple of commenters 
asserted the regulations should not direct agencies to discuss a 
proposed action's relationship with governmental plans related to 
climate change. The commenters urged CEQ to exclude the language 
``those addressing climate change'' from the final rule or recommended 
the regulations clarify that NEPA does not require agencies to attempt 
to resolve these conflicts. Another commenter opined that the proposal 
to remove ``land use plans'' and instead include plans addressing 
climate change threatens to lead to speculative analyses. Further, the 
commenter asserted that the regulations do not explain how agencies 
should analyze multi-State projects or determine how a particular 
project conflicts with a State- or region-wide plan or emissions 
target.
    In the final rule, CEQ removes ``land use'' and adds the example of 
plans that address climate change in the final rule at Sec.  
1502.16(a)(5). CEQ notes that the reference to climate change plans is 
only an example, but also that the example is consistent with the 2023 
GHG guidance, which identifies climate change plans as having the 
potential to assist agencies in their analysis of reasonably 
foreseeable GHG emissions. CEQ also notes that nothing in this 
provision or any other provision of the NEPA regulations has ever 
required agencies to resolve conflicts; it merely requires agencies to 
discuss any possible conflicts. With respect to multi-State projects, 
CEQ does not consider it appropriate to modify this provision to 
address a specific type of project. However, CEQ is unaware of agency 
confusion regarding how to address multi-State projects. CEQ will 
consider whether additional guidance is needed in the future. CEQ 
retains the term ``policies'' to promote inclusive consideration of 
positions taken by regional, State, Tribal and local government 
entities, noting that policies are formally adopted by those entities 
while preferences or positions generally are not formally adopted.
    Multiple commenters specifically opposed proposed paragraph (a)(7) 
and the singling out of reasonably foreseeable climate change-related 
effects in the regulations. One commenter stated that the integration 
of one specific category of potential environmental effects is a 
notable break from NEPA precedent and historic practice, which 
emphasizes that NEPA is neutral towards the type of resource concern 
and the type of potential environmental effect. CEQ disagrees with the 
assertion that identifying a category of effects is unprecedented and 
notes that this provision has always referenced certain types of 
effects, including effects related to energy, natural and depletable 
resources, and historic and cultural resources.
    A commenter asserted that the references to climate change-related 
effects in proposed paragraph (a)(7) and other provisions of the 
regulations inconsistently refer to NEPA's reasonable foreseeability 
limitation and otherwise ignore the fundamental principle of causation. 
A few other commenters also raised the issue of causation, arguing that 
NEPA only requires an agency to consider effects that have a 
sufficiently close causal connection to the proposed action and stating 
that the proposed rule, and specifically proposed paragraph (a)(7), 
diverges from this principle by requiring analysis of any reasonably 
foreseeable climate-change related effects of the proposed action. One 
commenter asserted CEQ is rewriting the standard that requires an 
agency to consider effects that have a sufficiently close causal 
relationship to the proposed action. They also asserted proposed 
paragraph (a)(7) could require an agency to discuss effects that are 
remote and speculative because it does not require the ability to 
demonstrate a direct causal chain between a project and climate change 
or how a specific project's greenhouse gas emissions would lead to 
actual environmental effects in that specific location.
    Another commenter asserted that proposed paragraph (a)(7) places 
unnecessary emphasis on climate change when there are many other 
effects on the environment that may occur due to a proposed action. A 
separate commenter asserted the proposed paragraph conflicts with the 
flexibility provided in CEQ's Interim Greenhouse Gas Guidance, which 
explains that agencies have the flexibility to discuss climate change 
and any other environmental issues to the extent the information will 
or will not be useful to the decision-making process and the public 
consistent with the ``rule of reason.'' Another commenter stated 
proposed paragraph (a)(7) is inconsistent with NEPA and would be 
impractical, resulting in lengthy reviews for projects without climate 
consequences.
    CEQ disagrees with these commenters' assertions and includes 
proposed paragraph (a)(7) at Sec.  1502.16(a)(6) in the final rule. CEQ 
adds the phrase ``where feasible, quantification of greenhouse gas 
emissions from the proposed action and alternatives and'' before ``the 
effects of climate change on the proposed action and alternatives.'' 
This provision incorporates into the final rule one of the 
recommendations of CEQ's 2023 GHG guidance.\91\ CEQ includes this 
provision in response to comments that CEQ received in response to 
CEQ's request for comment on potentially codifying elements of the 
Guidance in the rule. See section II.D.1.\92\ CEQ agrees with the 
comments discussed in section II.D.1 that contend that requiring 
agencies to quantify greenhouse gas emissions, where feasible, will 
increase the clarity of the regulations and is consistent with case 
law. See, e.g., Food & Water Watch v. FERC, 28 F.4th 277, 289 (D.C. 
Cir. 2022) (remanding to the agency to prepare a supplemental EA

[[Page 35509]]

``in which it must either quantify and consider the project's 
downstream carbon emissions or explain in more detail why it cannot do 
so''); Sierra Club v. FERC, 867 F.3d 1357, 1375 (D.C. Cir. 2017) 
(holding that the agency ``must either quantify and consider the 
project's downstream carbon emissions or explain in more detail why it 
cannot do so''); WildEarth Guardians v. Zinke, 368 F.Supp.3d 41, 68 
(D.D.C. 2019) (BLM's failure to quantify greenhouse gas emissions that 
were reasonably foreseeable effects of oil and gas development during 
the leasing and development process was arbitrary and capricious). As 
such, CEQ disagrees with the commenters' assertions that the rule 
requires agencies to go beyond what case law generally already requires 
them to consider under NEPA. Moreover, as CEQ indicates earlier in this 
section and makes clearer with its edits to paragraph (a) in the final 
rule, this paragraph indicates that agencies must analyze climate-
related effects that meet the definition of ``effects''--that is, are 
reasonably foreseeable--and includes the qualifier ``where applicable'' 
to acknowledge that not all actions will have climate-related effects 
that require analysis in the EIS.
---------------------------------------------------------------------------

    \91\ See CEQ, 2023 GHG Guidance, supra note 10.
    \92\ See CEQ, Phase 2 proposed rule, supra note 51, at 49945.
---------------------------------------------------------------------------

    A few commenters opposed the addition of proposed paragraphs (a)(7) 
and (a)(10), stating that taken together, the proposed changes expand 
the scope of NEPA effects and alternatives analyses relative to 
discrete projects and authorizations and will result in agencies 
relying on unsubstantiated projections on a project's potential to 
impact climate change locally or globally.
    Other commenters opposed proposed paragraph (a)(10) for various 
reasons. One commenter asserted risk reduction, resiliency, or 
adaptation measures are best addressed through planning and 
programming, asset management, and emergency response that occurs 
programmatically prior to NEPA review and in final design that occurs 
after the NEPA review, instead of as part of the project-specific 
review. Similarly, another commenter stated requiring an EIS to 
incorporate these measures into the proposed action or alternatives 
will be costly if completed during the NEPA process and should be done 
earlier, such as during long-range planning processes that occur prior 
to NEPA. CEQ notes that if an agency engages in long-range planning 
processes, the agency may incorporate by reference any analyses that 
are completed programmatically prior to the NEPA review for a specific 
action. With respect to final design, agencies may discuss such 
measures generally in the EIS. Further, agencies have decades of 
experience analyzing proposed actions before final design, and agencies 
can do so similarly for risk reduction, resiliency, or adaptation 
measures.
    Another commenter asserted that the term ``relevant'' is subjective 
and suggested that CEQ define it to include peer-reviewed science and 
data made available by independent sources. CEQ declines to add this 
specificity in the final rule and leaves it to agency judgment to 
identify what is relevant for a particular proposed action.
    One commenter supported proposed paragraph (a)(10) but requested 
the regulations clarify that the language does not require an agency to 
gather new data, consistent with NEPA. Another commenter also supported 
the proposal, but suggested that CEQ remove the mandate to use accurate 
and up-to-date information from proposed Sec.  1502.21. CEQ considers 
it important to specifically reference science and data on the affected 
environment and expected future conditions in this paragraph because 
they are essential to determine what resiliency and adaptation measures 
are relevant. CEQ declines to specify that agencies do not need to 
gather new data as this is addressed in Sec.  1502.21, regarding 
incomplete or unavailable information as well, as Sec.  1506.6, 
regarding methodology and scientific accuracy. Therefore, CEQ adds 
proposed paragraph (a)(10) at Sec.  1502.16(a)(9) in the final rule.
    In the final rule, CEQ revises Sec.  1502.16(a)(5) and adds Sec.  
1502.16(a)(6) and (a)(9) to clarify that agencies must address both the 
effects of the proposed action and alternatives on climate change, and 
the resiliency of the proposed action and alternatives in light of 
climate change.\93\ These revisions are consistent with what NEPA has 
long required: using science to make decisions informed by an 
understanding of the effects of the proposed action and of its 
alternatives. In particular, understanding how climate change will 
affect the proposed action and the various alternatives to that action 
is necessary to understanding what constitutes ``a reasonable range of 
alternatives'' and which alternatives are ``technically and 
economically feasible'' and ``appropriate,'' see 42 U.S.C. 
4332(2)(C)(iii), (F), (H). Moreover, the effects that climate change 
will have on the proposed action and its alternatives may in turn alter 
the effects that the action has on the environment. For example, an 
increase in extreme weather events may affect the amount of stream 
sedimentation that results from a new road or the risk that an 
industrial facility will experience a catastrophic release. Therefore, 
considering the effects of climate change on the action and its 
alternatives is necessary to understand the ``reasonably foreseeable 
environmental effects'' of the proposed action and its alternatives, 42 
U.S.C. 4332(2)(C)(i). These revisions also align with the definition of 
``effects'' to encompass reasonably foreseeable indirect and cumulative 
effects, which are integral to NEPA analyses.
---------------------------------------------------------------------------

    \93\ Such analysis is not new, and CEQ has issued guidance 
consistent with these proposed provisions for nearly a decade. See 
generally CEQ, Final Guidance for Federal Departments and Agencies 
on Consideration of Greenhouse Gas Emissions and the Effects of 
Climate Change in National Environmental Policy Act Reviews, 81 FR 
51866 (Aug. 8, 2016), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_guidance.pdf, and CEQ, 2023 GHG Guidance, 
supra note 10.
---------------------------------------------------------------------------

    Tenth, to accommodate the newly proposed paragraphs (a)(7) and 
(a)(10), CEQ proposed to redesignate paragraphs (a)(6) and (a)(7) of 40 
CFR 1502.16 (2020) as paragraphs (a)(8) and (a)(9), respectively. In 
the final rule, CEQ redesignates these paragraphs as Sec.  
1502.16(a)(7) and (a)(8). CEQ also proposed to redesignate paragraphs 
(a)(8) through (a)(10) of 40 CFR 1502.16 (2020) as paragraphs (a)(11) 
through (a)(13), respectively. In the final rule, CEQ redesignates 
these paragraphs as Sec.  1502.16(a)(10) through (a)(12).
    Eleventh, CEQ proposed to add a new paragraph (a)(14) to require 
agencies to discuss any potential for disproportionate and adverse 
health and environmental effects on communities with environmental 
justice concerns, consistent with sections 101, 102(2)(A), 
102(2)(C)(i), and 102(2)(I) of NEPA. See 42 U.S.C. 4331, 4332(2)(A), 
4332(2)(C)(i), 4332(2)(I). CEQ proposed this paragraph to clarify that 
EISs generally must include an environmental justice analysis to ensure 
that decision makers consider disproportionate and adverse effects on 
these communities.
    A few commenters expressed general support for proposed paragraph 
(a)(14), with some stating that the inclusion of disproportionate 
effects on communities with environmental justice concerns is long 
overdue. Some of these supportive commenters requested CEQ provide 
additional clarity in the regulations or through guidance on what 
constitutes a robust environmental justice analysis. One commenter 
suggested the final rule include additional text to emphasize welfare 
effects and to state that the evaluation should not offset positive 
effects on one community with environmental justice concerns against

[[Page 35510]]

negative effects on another community with environmental justice 
concerns.
    Multiple commenters opposed proposed paragraph (a)(14) for reasons 
similar to the opposition to including climate change-related effects, 
asserting that it is inappropriate to single out these types of 
effects. One commenter suggested the proposed paragraph will allow 
consideration of remote and speculative environmental justice concerns 
and is in conflict with case law. Another commenter stated the proposed 
paragraph requires agencies to consider effects that are not 
``reasonably foreseeable.'' Further, another commenter requested that 
the regulations clarify that not all environmental effects will be 
``disproportionate and adverse.''
    In the final rule, CEQ adds proposed paragraph (a)(14) at Sec.  
1502.16(a)(13) and modifies the text from the proposal to replace 
``[t]he potential for'' with ``[w]here applicable'' before 
``disproportionate and adverse human health and environmental effects 
on communities with environmental justice concerns.'' As discussed 
earlier in this section, CEQ adds the ``where applicable'' qualifier to 
make clear that not all proposed actions will have such effects. The 
final rule also omits ``potential,'' given the changes to paragraph (a) 
to clarify that all effects in the list must be reasonably foreseeable.
    Multiple commenters grouped their general concerns on proposed 
Sec.  1502.16(a)(7), (a)(10), and (a)(14) together, expressing overall 
concern regarding the inclusion of climate change and environmental 
justice-related provisions in Sec.  1502.16. These commenters asserted 
that these proposed additions are contrary to the purpose of NEPA and 
inappropriately elevate climate change and environmental justice over 
other issues, such as water quality, waste management, and air quality. 
Other commenters expressed concern over the addition of policy 
priorities to the regulations. As CEQ has discussed in this section and 
elsewhere in this preamble and the Phase 2 Response to Comments, CEQ 
considers these additions consistent with the text of NEPA, 
longstanding practice, and case law and finds it appropriate to 
recognize the importance of climate change and environmental justice 
effects to inform agency decision making and the public about a 
proposed action. CEQ notes that the list of effects in Sec.  1502.16(a) 
is not exhaustive, and that agencies must determine on a case-by-case 
basis which effects are relevant to address in an EIS.
    Finally, in paragraph (b), which addresses economic or social 
effects, CEQ proposed to strike ``and give appropriate consideration 
to'' from paragraph (b). CEQ proposed this revision to remove 
unnecessary language that could be read to require the decision maker 
to make consideration of such effects a higher priority than other 
effects listed in this section.
    One commenter expressed support for the proposed change in 
paragraph (b) but requested that the final rule include language 
requiring specific analyses of housing affordability, availability, and 
quality. CEQ declines to add this language because, while these 
considerations may be appropriate for some projects, this level of 
specificity is unnecessary in the regulations, as housing-related 
effects are a subset of social and economic effects. Another commenter 
requested that the final rule include cultural effects in the second 
sentence. CEQ declines to add cultural effects to paragraph (b) because 
historic and cultural resources are included in Sec.  1502.16(a)(10), 
and agencies also may address effects to cultural resources consistent 
with Sec.  1502.16(a)(5).
    CEQ did not receive comments specific to its proposed edits to 
paragraph (b). In the final rule, CEQ strikes the phrase ``and give 
appropriate consideration to,'' as proposed, from Sec.  1502.16(b).
16. Summary of Scoping Information (Sec.  1502.17)
    CEQ proposed to revise Sec.  1502.17 and retitle it ``Summary of 
scoping information'' to more accurately reflect the proposed revisions 
to this section and align it with the common practice of what many 
agencies produce in scoping reports. CEQ proposed other changes in this 
section to simplify and remove unnecessary or redundant text and 
clarify requirements. Commenters were generally supportive of CEQ's 
proposal and provided a few suggested edits to the regulatory text, as 
discussed in this section. A few commenters expressed concern about the 
additional burden of preparing a summary of scoping information.
    CEQ finalizes this section as proposed with a few additional edits. 
Agencies have long collected the information addressed in this section 
as part of the scoping process and provided it in various formats, such 
as in scoping reports or by integrating it into the EIS itself. 
Transparency about this information is valuable to the NEPA process 
because it demonstrates what agencies have considered in preparing an 
EIS. Further, CEQ disagrees that preparing a summary of such 
information is a significant burden on agencies because the regulations 
do not require a lengthy, detailed summary and provide agencies 
sufficient flexibility to exercise their discretion in what to prepare.
    CEQ proposed to revise paragraph (a) to require agencies to include 
a summary of the information they receive from commenters during the 
scoping process in draft EISs, consistent with the revisions to 
Sec. Sec.  1500.4, 1501.9, and 1502.4. CEQ proposed to replace ``State, 
Tribal, and local governments and other public commenters'' with 
``commenters'' because this phrase is all encompassing. CEQ also 
proposed to clarify that a draft EIS should include a summary of 
information, including alternative and analyses, that commenters 
submitted during scoping.
    At least one commenter inquired whether an agency could meet the 
requirements of paragraph (a) by including a summary in an appendix to 
the draft EIS. CEQ did not intend its proposal to limit where agencies 
provide the summary of scoping information. To make clear that agencies 
have the flexibility on where to place this section in their EISs, CEQ 
has added ``or appendix'' after ``draft environmental impact 
statement.'' Another commenter asked whether inserting the word 
``draft'' before the second instance of ``environmental impact 
statement'' in paragraph (a) precluded agencies from considering such 
information in the final EIS. This was not CEQ's intent, so the final 
rule text does not include the word ``draft'' as CEQ proposed. CEQ 
otherwise revises paragraph (a) as proposed. This change provides 
agencies flexibility to develop a broader summary of information 
received during scoping. While agencies should still summarize 
alternatives and analyses, this provision does not require them to 
provide a specific summary of every individual alternative, piece of 
information, or analysis commenters submit during scoping.
    CEQ proposed to redesignate paragraph (a)(1) as paragraph (b) and 
modify it to clarify that agencies can either append comments received 
during scoping to the draft EIS or otherwise make them publicly 
available. CEQ proposed this modification to clarify that the 
requirements of this paragraph can be met through means other than an 
appendix, such as a scoping report, which is common practice for some 
Federal agencies. CEQ proposed a conforming edit in paragraph (d) of 
Sec.  1502.19, ``Appendix,'' for consistency with this language.
    CEQ received a comment questioning why CEQ would change ``publish'' 
to ``otherwise make publicly available all

[[Page 35511]]

comments,'' which could suggest an agency could make comments publicly 
available by providing them in response to a FOIA request rather than 
by affirmatively providing them. This was not the intent of CEQ's 
proposed change. Therefore, CEQ is not making this change in the final 
rule. With these modifications, CEQ amends this provision as proposed.
    Finally, CEQ proposed to delete 40 CFR 1502.17(a)(2) and (b) (2020) 
because the requirements of these paragraphs are redundant to the 
requirements in part 1503 for Federal agencies to invite comment on 
draft EISs in their entirety and review and respond to public comments. 
CEQ makes this change in the final rule.
17. Incomplete or Unavailable Information (Sec.  1502.21)
    CEQ proposed one revision to paragraph (b) of Sec.  1502.21, which 
addresses when an agency needs to obtain and include incomplete 
information in an EIS. CEQ proposed to strike ``but available'' from 
the sentence, which the 2020 rule added, to clarify that agencies must 
obtain information relevant to reasonably foreseeable significant 
adverse effects when that information is essential to a reasoned choice 
between alternatives, where the overall costs of doing so are not 
unreasonable, and the means of obtaining that information are known. 
CEQ proposed to remove the phrase ``but available'' because it could be 
read to significantly narrow agencies' obligations to obtain additional 
information even when it is easily attainable and the costs are 
reasonable. During the development of the proposed rule, agency NEPA 
experts indicated that this qualifier could be read to say that 
agencies do not need to collect additional information that could and 
should otherwise inform the public and decision makers.
    Some commenters supported the proposed deletion of ``but 
available'' in paragraph (b), reasoning that this edit will ensure 
agencies obtain necessary information regarding reasonably foreseeable 
significant adverse effects that is essential to a reasoned choice 
among alternatives rather than dismissing the information as 
unavailable. Another commenter supported the change because it better 
ensures agencies obtain high quality information to inform their 
analyses. Other commenters opposed the change, asserting it unduly 
expands agencies' obligations to obtain additional information. One 
commenter stated the change removes a bright-line requirement to rely 
on existing information and another commenter agreed, stating the 
inclusion of ``but available'' helped to focus the scope of the inquiry 
on available information. Without this limitation, the commenter 
asserted agencies could face litigation over the subjective 
reasonableness of failing to obtain new information. Some commenters 
expressed concern that the proposed change broadens the circumstances 
when agencies must obtain new information and increases the risk of 
reliance on poor quality information developed quickly to meet the 
statutory timeframes.
    One commenter provided that if CEQ finalizes the proposed change, 
it should clarify that agencies should not delay the NEPA process by 
obtaining non-essential information. This commenter also requested that 
CEQ clarify that agencies only need to produce new information where 
the agencies would not be able to make an informed decision about the 
reasonably foreseeable effects of a project otherwise. Similarly, 
another commenter stated that if finalized, CEQ should clarify that new 
agency research is required only in limited circumstances and is the 
exception, not the rule.
    CEQ makes the change to remove ``but available'' from Sec.  
1502.21(b) in the final rule. CEQ has reconsidered its position in the 
2020 rule and now considers it vital to the NEPA process for agencies 
to undertake studies and analyses where the information from those 
studies and analyses is essential to a reasoned choice among 
alternatives and the overall costs are not unreasonable, rather than 
relying solely on available information. In particular, CEQ notes its 
longstanding interpretation of ``incomplete information'' as 
articulated in the 1986 amendments to this provision. CEQ defined 
``incomplete information'' as information that an agency cannot obtain 
because the overall costs of doing so are exorbitant and ``unavailable 
information'' as information that an agency cannot obtain it because 
``the means to obtain it are not known.'' \94\ In response to comments 
in 1986, CEQ further explained that the phrase `` `the means to obtain 
it are not known' is meant to include circumstances in which the 
unavailable information cannot be obtained because adequate scientific 
knowledge, expertise, techniques or equipment do not exist.'' \95\ The 
2020 rule disregarded this longstanding interpretation and instead 
suggested that new scientific or technical research is ``unavailable 
information.'' Upon further consideration, CEQ disagrees with the 
interpretation in the 2020 rule and re-adopts its longstanding 
interpretation that the phrase ``incomplete information'' applies only 
to information from new scientific or technical research, the cost of 
which are unreasonable.
---------------------------------------------------------------------------

    \94\ CEQ, National Environmental Policy Act Regulations; 
Incomplete or Unavailable Information, supra note 32, at 15621.
    \95\ Id. at 15622.
---------------------------------------------------------------------------

    Removing the phrase ``but available'' also is consistent with 
section 106(b)(3) of NEPA, which was added by the recent NEPA 
amendments and states that in determining the level of NEPA review, 
agencies are only required to undertake new scientific or technical 
research where essential to a reasoned choice among alternatives and 
the overall costs and time frame of obtaining it are not unreasonable. 
42 U.S.C. 4336(b)(3). While section 106(3) only directly applies to 
determining the level of NEPA review, the provision's limitation on 
when agencies need to undertake new scientific or technical research in 
that context refutes an interpretation of NEPA as limiting agencies to 
considering available information. 42 U.S.C. 4336(b)(3). Establishing a 
consistent standard to address incomplete information in the NEPA 
review process that is consistent with the text of section 106(3) will 
lead to a more orderly and predictable environmental review process. 42 
U.S.C. 4336(b)(3). Similarly, CEQ considers it appropriate to require 
agencies to ensure professional integrity, including scientific 
integrity, and use reliable data and resources, as well as other 
provisions in the regulations emphasizing the importance of relying on 
high-quality and accurate information throughout implementation of 
NEPA. See, e.g., Sec. Sec.  1500.1(b), 1506.6.
    CEQ disagrees that this change will unduly expand agencies' 
obligations to obtain additional information. CEQ is reverting to the 
longstanding approach in the regulations that will ensure agencies 
appropriately gather information when it is necessary to inform the 
decision maker and the public. CEQ considers the bounding language of 
reasonable costs and necessity to make a reasoned choice to be the 
appropriate cabining so that agencies are reasonably gathering any 
additional information needed for a sufficient NEPA analysis without 
creating undue burden or facilitating a boundless collection of 
information. With respect to litigation risk, as with many other 
aspects of a NEPA review, agencies should explain in their documents 
their rationale when they determine it is unreasonable or

[[Page 35512]]

unnecessary to obtain new information. Finally, CEQ acknowledges the 
potential tension between the time it takes to gather new information 
and statutory deadlines. CEQ encourages agencies to identify incomplete 
information as early as possible in the process to ensure they have 
time to gather the information necessary to satisfy their NEPA 
obligations during the statutory timeframes. CEQ also notes that where 
an agency cannot obtain incomplete information within the statutory 
timeframes, but the costs are reasonable, the agency could conclude 
that it is necessary to set a new deadline that allows only as much 
time as necessary to obtain the information so long as the costs of 
obtaining the information, including any cost from extending the 
deadline and delaying the action, are reasonable.
    Finally, CEQ removes the modifier ``adverse'' from ``significant 
adverse effects'' throughout this section because the final rule 
defines ``significant effects'' to be adverse effects. CEQ makes this 
change for clarity and consistency with the definition.
18. Methodology and Scientific Accuracy (Proposed Sec.  1502.23)
    In the proposed rule, CEQ proposed updates to Sec.  1502.23, 
``Methodology and Scientific Accuracy,'' which requires agencies to 
ensure the professional integrity, including scientific integrity, of 
the discussions and analyses in environmental documents. CEQ proposed 
revisions to promote use of high-quality information; require agencies 
to explain assumptions; and, where appropriate, incorporate 
projections, including climate change-related projections, in the 
evaluation of reasonably foreseeable effects.
    CEQ received a number of comments expressing confusion regarding 
the applicability of this provision. In particular, since 1978, the 
provision has used the term ``environmental documents,'' making it 
broadly applicable. However, it is included in part 1502, which 
addresses requirements for EISs. Additionally, the amendments to NEPA 
make clear that agencies must ensure the professional integrity, 
including scientific integrity, of the discussion and analysis in their 
NEPA documents, not just in EISs, and make use of reliable data and 
resources in carrying out NEPA. To address the confusion amongst 
commenters and for consistency with the NEPA statute, CEQ moves this 
provision to part 1506, specifically Sec.  1506.6, which addresses 
other requirements of NEPA.
    For the discussion of the specific proposed changes and comments on 
those changes as well as a description of the final rule, refer to 
section II.H.4.

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

    CEQ is making substantive revisions to all sections of part 1503, 
except Sec.  1503.2, ``Duty to comment.'' While CEQ invited comment on 
whether it should make any substantive changes to this section, CEQ did 
not receive any specific comments recommending such changes to Sec.  
1503.2. Therefore, CEQ finalizes Sec.  1503.2 with the non-substantive 
edits proposed in the NPRM (spelling out EIS and fixing citations).
1. Inviting Comments and Requesting Information and Analyses (Sec.  
1503.1)
    CEQ did not propose substantive changes to Sec.  1503.1 except to 
delete paragraph (a)(3) of 40 CFR 1503.1 (2020), requiring agencies to 
invite comment specifically on the submitted alternatives, information, 
and analyses and the summary thereof, for consistency with the proposed 
changes to the exhaustion provision in Sec.  1500.3 and the 
corresponding revisions to Sec.  1502.17. CEQ discusses the comments on 
removal of the exhaustion provisions generally in section II.B.3, and 
CEQ did not receive any comments specific to the proposed deletion of 
40 CFR 1503.1(a)(3) (2020). CEQ deletes this paragraph in the final 
rule because CEQ is revising Sec.  1500.3 to remove the exhaustion 
provision in this final rule as discussed in section II.B.3. Therefore, 
this requirement to invite comment is unnecessary and redundant as 
Federal agencies invite comment on all sections of draft EISs, 
including any appendices, and thus need not invite comment on one 
specific section of an EIS.
2. Specificity of Comments and Information (Sec.  1503.3)
    CEQ proposed edits to Sec.  1503.3 to clarify the expected level of 
detail in comments submitted by the public and other agencies to 
facilitate consideration of such comments by agencies in their 
decision-making processes. CEQ proposed these edits to remove or 
otherwise modify provisions that could inappropriately restrict public 
comments and place unnecessary burden on public commenters.
    Multiple commenters expressed support for the proposed rule's edits 
to Sec.  1503.3 to remove language in the 2020 rule and argued that the 
language impeded public participation and unlawfully sought to limit 
access to the courts. Commenters asserted that the 2020 language 
impeded participation in the NEPA process by members of the public with 
valuable information and perspective on the proposed action. 
Specifically, the commenters supported the removal of the requirement 
for the public to provide as much detail as necessary in paragraph (a), 
along with the proposed clarification that commenters do not need to 
describe their data, sources, or methodologies. Commenters further 
stated that the requirement to provide as much detail as necessary was 
ambiguous and could have been interpreted to establish an unjustified 
barrier to public comment to those who do not have access to technical 
experts or consultants. As discussed further in this section, CEQ is 
finalizing all but one of its proposed changes.
    CEQ proposed to remove language from Sec.  1503.3(a), which the 
2020 rule added, that requires comments to be as detailed ``as 
necessary to meaningfully participate and fully inform the agency of 
the commenter's position'' because this requirement could lead 
commenters to provide unnecessarily long comments that will impede 
efficiency. Commenters generally supported this proposal. In support of 
the proposed removal, one commenter asserted that the ambiguity of the 
requirement to provide as much detail as necessary would prompt 
unnecessary litigation over whether particular comments were sufficient 
to ``fully inform'' the agency.
    CEQ strikes this language in the final rule. Paragraph (a) of Sec.  
1503.3 has always required comments to be ``as specific as possible,'' 
see 40 CFR 1503.3(a) (2019); 40 CFR 1503.3(a) (2020), and the language 
CEQ is removing could be read to require commenters to provide detailed 
information that either is not pertinent to the NEPA analysis or is 
about the commenter's position on the proposed action, the project 
proponent, the Federal agency, or other issues. For example, the text 
could be read to require a commenter to provide a detailed explanation 
of a moral objection to a proposed action or a personal interest in it 
if those inform the commenter's position on the project. The text also 
could imply that commenters must either be an expert on the subject 
matter or hire an expert to provide the necessary level of detail. 
Further, the text could be read to imply that commenters are under an 
obligation to collect or produce information necessary for agencies to 
fully evaluate issues raised in comments even if the commenters do not 
possess that information or the skills necessary to produce it.
    As CEQ explained in the proposed rule, some commenters on the 2020 
rule

[[Page 35513]]

raised this issue, expressing concerns that this language could be read 
to require the general public to demonstrate a level of sophistication 
and technical expertise not required historically under the CEQ 
regulations or consistent with the NEPA statute.\96\ Commenters also 
expressed concern that the requirement would discourage or preclude 
laypersons or communities with environmental justice concerns from 
commenting.\97\ Other commenters on the 2020 rule expressed concern 
that the changes would shift the responsibility of analysis from the 
agencies to the general public.\98\ Finally, CEQ is removing this 
language because the requirements that comments provide as much detail 
as necessary to ``meaningfully'' participate and ``fully inform'' the 
agency are vague and put the burden on the commenter to anticipate the 
appropriate level of detail to meet those standards.
---------------------------------------------------------------------------

    \96\ CEQ, 2020 Response to Comments, supra note 69, at 326-27.
    \97\ Id.at 327.
    \98\ Id. at 328.
---------------------------------------------------------------------------

    CEQ also proposed to delete from the second sentence in paragraph 
(a) language describing certain types of impacts that a comment should 
cover, including the reference to economic and employment impacts as 
well as the phrase ``and other impacts affecting the quality of the 
human environment'' because it is unnecessary and duplicative of 
``consideration of potential effects and alternatives,'' which appears 
earlier in the sentence. CEQ proposed to delete the reference to 
economic and employment impacts because this language imposes an 
inappropriate burden on commenters by indicating that comments need to 
explain why an issue matters for economic and employment purposes. NEPA 
requires agencies to analyze the potential effects on the human 
environment and does not require that these effects be specified in 
economic terms or related specifically to employment considerations. 
Therefore, it is inappropriate to single out these considerations for 
special consideration by commenters and unduly burdensome to expect 
every commenter to address economic and employment impacts.
    A few commenters opposed the deletion, expressing concerns that 
removal of this language would discourage agencies from considering 
economic or employment impacts, or indicate that agencies are not 
interested in considering such information. CEQ disagrees with the 
commenters' assertions. This provision addresses the role of 
commenters, who are in the best position to assess the appropriate 
scope of their comments. CEQ broadens the language in the final rule, 
consistent with the proposal, to invite and welcome comments on effects 
of all kinds. The revision in the final rule will not have the effect 
of limiting commenters from addressing economic or employment impacts 
in their comments but would avoid the implication that members of the 
public are welcome to comment only if they address those issues. 
Further, the removal of this language in the provisions on public 
comments for an EIS does not affect potential consideration of these 
effects during the environmental review process. Specifically, Sec.  
1501.2(b)(2) requires agencies to identify environmental effects and 
values in adequate detail so the decision maker can appropriately 
consider such effects and values alongside economic and technical 
analyses. For these reasons, CEQ makes the edits as proposed to the 
second sentence of Sec.  1503.3(a) in the final rule.
    Finally, in paragraph (a), CEQ proposed changes to the last 
sentence to clarify that, only where possible, the public should 
include citations or proposed changes to the EIS or describe the data, 
sources, or methodologies that support the proposed changes in their 
comments. While such information is helpful to the agency whenever it 
is readily available, CEQ had concerns that this could be construed to 
place an unreasonable burden on commenters. CEQ did not receive any 
comments specific to this change and makes these edits as proposed in 
the final rule.
    CEQ proposed to strike paragraph (b) of 40 CFR 1503.3 (2020) and 
redesignate paragraphs (c) and (d) as Sec.  1503.3(b) and (c), 
respectively. CEQ proposed to delete paragraph (b) for consistency with 
the proposed removal of the exhaustion requirement from 40 CFR 1500.3 
(2020) and corresponding changes to Sec.  1502.17. CEQ also proposed to 
remove this paragraph because it is unrelated to the subject addressed 
in Sec.  1503.3, which addresses the specificity of comments, rather 
than when commenters should file their comments. Finally, CEQ proposed 
to remove this paragraph because agencies have long had the discretion 
to consider special or unique circumstances that may warrant 
consideration of comments outside those time periods.
    While most commenters were supportive of the deletion of the 
provisions related to exhaustion, a few commenters specifically 
requested CEQ retain paragraph (b) of 40 CFR 1503.3 (2020) in the final 
rule. These commenters expressed concern about increased litigation and 
commenters raising issues at the last minute or in litigation for the 
first time.
    CEQ removes paragraph (b) of 40 CFR 1503.3 (2020) in the final 
rule. The CEQ regulations have long encouraged the identification of 
issues early in the NEPA process by providing multiple opportunities 
for the public to engage--first through the scoping process and then 
through the public comment period on the draft EIS. As CEQ explains in 
section II.B.3, CEQ has determined it is appropriate to remove the 
exhaustion provisions in 40 CFR 1500.3 (2020), which CEQ considers 
related to general principles of administrative law applied by courts 
rather than to principles specific to NEPA. Therefore, CEQ removes this 
paragraph for the reasons set forth in the NPRM, the Phase 2 Response 
to Comments, and the preamble of this final rule.
    Next, CEQ proposed to strike ``site-specific'' from 40 CFR 
1503.3(d) (2020) in proposed paragraph (c) to clarify that cooperating 
agencies must identify additional information needed to address 
significant effects generally. CEQ proposed this change to enhance 
efficiency because it ensures that cooperating agencies have the 
information they need to fully comment on EISs, averting potential 
delay in the environmental review process. CEQ did not receive any 
comments specific to this proposed change. CEQ makes this change for 
clarity in the final rule.
    Finally, CEQ proposed to strike the requirement for cooperating 
agencies to cite their statutory authority for recommending mitigation 
from 40 CFR 1503.3(e) (2020). The NPRM explained that this requirement 
is unnecessary since, at this stage in development of an EIS, those 
agencies with jurisdiction by law have already established their legal 
authority to participate as cooperating agencies. Two commenters 
opposed this change, suggesting that requiring cooperating agencies to 
provide this additional detail to the lead agency will help the lead 
agency and applicants assess the reasonableness of such 
recommendations. Upon further consideration, CEQ has decided not to 
remove this requirement in the final rule. CEQ revises the beginning of 
the sentence from ``When a cooperating agency with jurisdiction by law 
specifies'' to ``A cooperating agency with jurisdiction by law shall 
specify'' to clarify the requirement to identify mitigation measures. 
Then, in the last clause, CEQ replaces ``the cooperating agency shall'' 
with ``and'' to retain the requirement for a cooperating agency to cite 
to its applicable statutory authority.

[[Page 35514]]

CEQ agrees that identifying the statutory authorities for mitigation is 
useful information. CEQ encourages cooperating agencies to identify 
such information as early as practicable in development of the EIS, but 
no later than at the time of their review of a draft EIS. CEQ also 
proposed in paragraph (d) to replace the reference to ``permit, 
license, or related requirements'' with ``authorizations'' because the 
definition of ``authorization'' in Sec.  1508.1(d) is inclusive of 
those terms. CEQ makes this change as proposed for clarity and 
consistency in the final rule.
3. Response to Comments (Sec.  1503.4)
    CEQ proposed to revise paragraph (a) of Sec.  1503.4 to clarify 
that agencies must respond to comments but may do so either 
individually, in groups, or in some combination thereof. CEQ proposed 
to change ``may'' to ``shall,'' which would revert a change made in the 
2020 rule, because the change created ambiguity that could be read to 
mean that agencies have discretion in whether to respond to comments at 
all, not just in the manner in which they respond, i.e., individually 
or in groups. CEQ did not indicate that it intended to make responding 
to comments voluntary when it made this change in the 2020 rule, and 
CEQ has determined that amending the regulations to avoid this 
ambiguity improves the clarity of the regulations.
    CEQ received a few comments on paragraph (a). A commenter suggested 
that the rule provide greater latitude to agencies to summarize and 
respond to comments of a similar nature or decline to respond to 
comments that the agency determines provide no substantive information 
applicable to the EIS. CEQ agrees that Federal agencies should have 
flexibility to summarize and respond to similar comments or decline to 
respond to non-substantive comments where appropriate. The proposed 
language provides this flexibility, and CEQ makes this change in the 
final rule. Restoring ``shall'' in place of ``may'' removes any 
ambiguity created by revisions to the paragraph in the 2020 regulations 
and is consistent with the longstanding requirement and expectation for 
agencies to respond to comments received on an EIS, while also 
clarifying that agencies have discretion on how to respond to comments 
to promote the efficiency of the NEPA process.
    A couple of commenters requested that CEQ define ``substantive 
comments;'' modify the last sentence of paragraph (a) to make the list 
of means by which an agency may respond in the final EIS to be a 
required list by changing ``may respond'' to ``will respond;'' and 
modify paragraph (a)(2) to clarify that the only alternatives an agency 
should develop and evaluate following public comments are those that 
are consistent with the purpose and need and are technically and 
economically feasible. CEQ declines to make these changes in the final 
rule. Agencies have extensive experience assessing whether a comment is 
substantive and should have the flexibility to do so--CEQ is concerned 
that a definition would be unnecessarily restrictive. Similarly, CEQ 
declines to make the list of means by which an agency responds to 
comments mandatory, as unnecessarily prescriptive; paragraph (a) lists 
the key ways agencies may address comments, but as long as agencies 
respond to individual comments or groups of comments, as required by 
the second sentence of paragraph (a), they should have flexibility to 
determine the appropriate means of response. Lastly, CEQ does not 
consider the proposed change to paragraph (a)(2) necessary because 
alternatives already must be consistent with the purpose and need 
consistent with Sec.  1502.14.
    In paragraph (c), CEQ proposed changes to clarify that when an 
agency uses an errata sheet, the agency must publish the entire final 
EIS, which would include the errata sheet, a copy of the draft EIS, and 
the comments with their responses. CEQ proposed these edits to reflect 
typical agency practice and to reflect the current requirement for 
electronic submission of EISs rather than the old practice of printing 
EISs for distribution. One commenter suggested that proposed edits 
would eliminate the errata sheet. The intent of CEQ's edits is to 
ensure that the public can access the complete analysis in one place. 
CEQ disagrees with the commenter's interpretation of the proposed text, 
but to remove any ambiguity, CEQ has revised the provision in the final 
rule to make clear that the final EIS includes the errata sheet and ``a 
copy of the draft statement.''

F. Revisions To Update Part 1504, Dispute Resolution and Pre-Decisional 
Referrals

    In the NPRM, CEQ proposed to revise part 1504 to add a new section 
on early dispute resolution and reorganize the existing sections. As 
discussed further in this section, CEQ makes the changes in the final 
rule with some additional edits that are responsive to commenters. One 
commenter noted that CEQ did not propose to revise the title of part 
1504 to reflect this approach. Therefore, in this final rule, CEQ 
revises and simplifies the title of part 1504 to ``Dispute resolution 
and pre-decisional referrals'' for consistency with the revisions to 
this part. CEQ notes that the criteria and procedures for agencies to 
make a referral apply to agencies that make a referral under the NEPA 
regulations and do not apply to EPA when exercising its referral 
authority under section 309 of the Clean Air Act, 42 U.S.C. 7609.
1. Purpose (Sec.  1504.1)
    CEQ proposed in Sec.  1504.1(a) to add language encouraging 
agencies to engage early with each other to resolve interagency 
disagreements concerning proposed major Federal actions before such 
disputes are referred to CEQ. CEQ also proposed to add language 
clarifying that part 1504 establishes procedures for agencies to submit 
requests to CEQ for informal dispute resolution, expanding the purpose 
to reflect the changes proposed in Sec.  1504.2 and described in 
section II.F.2. While CEQ did not receive any comments on the language 
of this specific provision, CEQ revises the proposed language to make 
clear that agencies need not engage in dispute resolution before a 
referral. At least one commenter interpreted the optional early dispute 
resolution provision in Sec.  1504.2 as a required precursor to a 
referral. Therefore, in the final rule, CEQ revises the first sentence 
as proposed to encourage agencies to engage with one another to resolve 
interagency disputes and adds the proposed new sentence indicating that 
part 1504 establishes the procedures for early dispute resolution, but 
does not include the clause referencing the referral process. As 
discussed further in section II.F.2, these revisions are consistent 
with CEQ's ongoing role in promoting the use of environmental 
collaboration and conflict resolution,\99\ and serving as a convener 
and informal mediator for interagency disputes. CEQ strongly encourages 
agencies to resolve disputes informally and as early as possible so 
that referrals under part 1504 are used only as a last resort. Early 
resolution of disputes is essential to ensuring an efficient and 
effective environmental review process.
---------------------------------------------------------------------------

    \99\ See OMB & CEQ, Memorandum on Environmental Collaboration 
and Conflict Resolution (Sept. 7, 2012), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907.pdf; OMB & CEQ, 
Memorandum on Environmental Conflict Resolution (Nov. 28, 2005), 
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/OMB_CEQ_Joint_Statement.pdf.
---------------------------------------------------------------------------

    In paragraph (b), which notes EPA's role pursuant to section 309 of 
the Clean Air Act, 42 U.S.C. 7609, CEQ proposed to strike the 
parenthetical providing the

[[Page 35515]]

term ``environmental referrals,'' as this term is not used elsewhere in 
part 1504. CEQ notes that EPA's section 309 authority is distinct from 
the ability of an agency to make a referral pursuant to Sec.  1504.3, 
and therefore part 1504 does not apply to EPA when it is exerting its 
section 309 authority. Finally, CEQ proposed to revise the second 
sentence in paragraph (c) to eliminate the passive voice to improve 
clarity. CEQ did not receive any specific comments on its proposed 
changes to paragraphs (b) and (c). Consistent with the NPRM, this final 
rule removes the parenthetical in paragraph (b) and revises paragraph 
(c) to add the second sentence as proposed. Additionally, the final 
rule strikes ``similar'' from the first sentence of paragraph (c) 
because the bases for referral under NEPA and section 309 are distinct.
2. Early Dispute Resolution (Sec.  1504.2)
    As discussed further in section II.F.3, CEQ proposed to move the 
provisions in 40 CFR 1504.2 (2020) to Sec.  1504.3(a) and to repurpose 
Sec.  1504.2 for a new section on early dispute resolution. CEQ 
proposed to add this section to codify agencies' current and 
longstanding practice of engaging with one another and enlisting CEQ to 
help resolve interagency disputes. While CEQ did not receive many 
comments on this provision, the vast majority of those it did receive 
supported the new provision, and some recommended CEQ make the language 
in the provision stronger and more directive. On the other hand, one 
commenter suggested dispute resolution would slow the environmental 
review process. CEQ is finalizing the provision as proposed because CEQ 
considers a flexible, informal, and non-binding approach rather than a 
mandatory and prescriptive process to strike the right balance to 
advance early resolution of interagency disputes. CEQ does not consider 
this provision to abrogate CEQ's authorities, as one commenter 
suggested, but rather to encourage agencies to resolve disputes early 
amongst themselves and elevate issues to CEQ when doing so will help 
advance resolution. Making the language in the regulations 
discretionary rather than mandatory does not affect CEQ's authorities.
    CEQ revises Sec.  1504.2 as proposed. Specifically, new paragraph 
(a) encourages agencies to engage in interagency coordination and 
collaboration within planning and decision-making processes and to 
identify and resolve interagency disputes. Further, paragraph (a) 
encourages agencies to elevate issues to appropriate agency officials 
or to CEQ in a timely manner that is consistent with the schedules for 
the proposed action established under Sec.  1501.10.
    Paragraph (b) allows a Federal agency to request that CEQ engage in 
informal dispute resolution. When making such a request to CEQ, the 
agency must provide CEQ with a summary of the proposed action, 
information on the disputed issues, and agency points of contact. This 
provision codifies the longstanding practice of CEQ helping to mediate 
and resolve interagency disputes outside of and well before the formal 
referral process (Sec.  1504.3) and to provide additional direction to 
agencies on what information CEQ needs to mediate effectively.
    Paragraph (c) provides CEQ with several options to respond to a 
request for informal dispute resolution, including requesting 
additional information, convening discussions, and making 
recommendations, as well as the option to decline the request.
3. Criteria and Procedure for Referrals and Response (Sec.  1504.3)
    As noted in section II.F.2, CEQ proposed to move the criteria for 
referral set forth in 40 CFR 1504.2 (2020) to a new paragraph (a) in 
Sec.  1504.3 and redesignate paragraphs (a) through (h) of 40 CFR 
1504.3 (2020) as Sec.  1504.3(b) through (i), respectively. Because of 
this consolidation, CEQ proposed to revise the title of Sec.  1504.3 to 
``Criteria and procedure for referrals and response.''
    At least one commenter supported the move of 40 CFR 1504.2 (2020) 
to proposed Sec.  1504.3(a) to facilitate the addition of the informal 
dispute resolution process. A few commenters requested that CEQ make 
additional changes to Sec.  1504.3 to restore language from the 1978 
regulations allowing public comment during CEQ's deliberations on 
whether to accept a particular referral and, if CEQ accepts a referral, 
during CEQ's consideration of recommendations to resolve the dispute.
    In the final rule, CEQ adds an additional factor, ``other 
appropriate considerations,'' at Sec.  1504.3(a)(8) to clarify that the 
list of considerations for referral is not an exclusive list. 
Additionally, CEQ revises paragraph (f) to allow ``other interested 
persons'' to provide views on the referrals because CEQ agrees with the 
commenters that the opportunity to provide views should not be limited 
to applicants. Relatedly, CEQ clarifies in paragraph (g)(3) that CEQ 
may obtain additional views and information ``including through public 
meetings or hearings.'' While the language in 40 CFR 1504.3(f)(3) 
(2020) and the proposed rule would not preclude CEQ from holding public 
meetings or hearings, CEQ considers it important to provide this 
clarification in the regulations to respond to comments. CEQ otherwise 
finalizes this provision as proposed.

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

1. Record of Decision in Cases Requiring Environmental Impact 
Statements (Sec.  1505.2)
    The proposed rule included proposed modifications in Sec.  1505.2 
to align this section with other proposed changes to the regulations 
relating to exhaustion and to clarify which alternatives agencies must 
identify in RODs. CEQ also proposed to modify the provision on 
mitigation. As discussed further in this section, CEQ proposed to 
strike paragraph (b) of 40 CFR 1505.2 (2020), make paragraph (a) of 40 
CFR 1505.2 (2020) the undesignated introductory paragraph in Sec.  
1505.2, and redesignate paragraphs (a)(1) through (a)(3) of 40 CFR 
1505.2 (2020) as Sec.  1505.2(a) through (c), respectively. CEQ makes 
these reorganizational changes in the final rule.
    In proposed paragraph (b), CEQ proposed to restructure the first 
sentence--by splitting it into two sentences and reframing it in active 
voice--to improve readability and clarify that an agency must identify 
the alternatives it considered in reaching its decision and also 
specify one or more environmentally preferable alternatives in the ROD, 
consistent with proposed changes to Sec.  1502.14(f) requiring an 
agency to identify one or more environmentally preferable alternatives 
in the EIS. CEQ makes these changes as proposed in the final rule.
    CEQ received a number of comments on the ``environmentally 
preferable alternative'' generally, which are discussed in detail in 
sections II.D.13 and II.J.10. CEQ notes that it did not intend a 
substantive change to the longstanding requirement to identify which 
alternative (or alternatives) considered in the EIS is the 
environmentally preferable alternative(s). Some commenters suggested 
that the ``environmentally preferable alternative'' could be an 
alternative other than the proposed action, no action, or reasonable 
alternatives (which must be technically and economically feasible and 
meet the definition of purpose and need). However, this is incorrect 
because the environmentally preferable alternative is one of the 
alternatives included in the analysis, which consist of the proposed 
action, no action, or reasonable

[[Page 35516]]

alternatives. CEQ is revising Sec.  1502.14(f) in the final rule, to 
which Sec.  1505.2(b) cross references, to make this clear. CEQ revises 
Sec.  1505.2 as proposed in the final rule.
    Another commenter suggested CEQ require an agency to specify if it 
selected the environmentally preferable alternative and if not, why 
not. CEQ declines to make this change in the final rule because it is 
overly prescriptive. The regulations have long required agencies to 
discuss myriad factors and considerations that agencies balance in 
making their decisions without specifically requiring an agency to 
explain why it did not select the environmentally preferable 
alternative, and CEQ does not consider a change from this longstanding 
practice to be warranted.
    In the third sentence of proposed Sec.  1505.2(b), CEQ added 
environmental considerations to the list of example relevant factors 
upon which an agency may base discussion of preferences among 
alternatives. CEQ did not receive any specific comments on this 
proposed change to Sec.  1505.2(b) and makes the changes in the final 
rule consistent with its proposal.
    In proposed Sec.  1505.2(c), CEQ proposed to change ``avoid or 
minimize'' to ``mitigate'' in the first sentence for consistency with 
the remainder of the paragraph. One commenter opposed this change, 
arguing that it would impose a burdensome requirement on agencies to 
consider mitigation for each of the effects of the proposed action and 
explain in a ROD why each impacted resource will not be replaced with a 
substitute. CEQ disagrees with the commenter's interpretation of the 
proposed revision. This provision has never required agencies to 
discuss avoidance or minimization at this level of detail, i.e., for 
each resource category. Rather, it requires an agency to discuss 
generally whether it has ``adopted all practicable means'' and if not, 
the reasons for not doing so. CEQ makes this change in the final rule 
to clarify that agencies should discuss generally whether they have 
adopted practicable mitigation to address environmental harms from the 
selected alternative. Agencies need not do so on an impact category-by-
impact category basis.
    Additionally, CEQ proposed to clarify in proposed Sec.  1505.2(c) 
that any mitigation must be enforceable, such as through permit 
conditions or grant agreements, if an agency includes the mitigation as 
a component of the selected action in the ROD, and the analysis of 
reasonably foreseeable effects in the EISs relies on effective 
implementation of that mitigation. CEQ also proposed to require 
agencies to identify the authority for enforceable mitigation. Lastly, 
CEQ proposed to replace the requirement to adopt and summarize a 
monitoring and enforcement program for any enforceable mitigation 
requirements or commitments, with a requirement to adopt a monitoring 
and compliance plan consistent with proposed Sec.  1505.3(c).
    CEQ received a large number of comments both supporting and 
opposing the proposed requirement to ensure that mitigation is 
enforceable in certain cases and to identify the authority for the 
enforceable mitigation. Supporters of the proposed change generally 
expressed concerns that mitigation incorporated in RODs or FONSIs is 
often not carried out, undermining the evaluation of effects required 
by NEPA. By contrast, opponents of the proposed change expressed 
concern that the provision would require enforceable mitigation in 
every case, and that the requirement for enforceability would 
discourage project proponents from proposing voluntary mitigation. 
These commenters also stated that NEPA does not require mitigation of 
adverse effects or give agencies the authority to require or enforce 
mitigation measures. They expressed concern that to the extent that the 
authority to require or enforce mitigation comes from other statutes, 
the requirement in proposed Sec.  1505.2(c) would be duplicative. 
Finally, commenters noted that ``enforcement'' may be the 
responsibility of an agency other than the lead agency and may consist 
of suspension or revocation of an authorization under terms and 
conditions included in the authorization rather than direct civil or 
administrative enforcement actions.
    In the final rule, CEQ retains the requirement to make mitigation 
enforceable in those circumstances in which agencies rely upon that 
mitigation as part of its analysis. CEQ has revised the sentence in 
Sec.  1505.2(c) to enhance readability and to address some of the 
confusion raised by commenters by specifying that mitigation must be 
enforceable by a lead, joint lead, or cooperating agency when the ROD 
incorporates mitigation and the analysis of the reasonably foreseeable 
effects of the proposed action is based on implementation of that 
mitigation. The final rule further revises the second sentence of 
proposed Sec.  1505.2(c) by breaking it into two sentences. The first 
identifies when mitigation must be enforceable. The second requires 
agencies to identify the authority for enforceable mitigation, provides 
examples of enforceable mitigation--specifically, permit conditions, 
agreements, or other measures--and requires agencies to prepare a 
monitoring and compliance plan. CEQ received a number of comments on 
the monitoring and compliance plan proposal, which are discussed in 
detail in section II.G.2. For the reasons discussed in that section, as 
well as the Phase 2 Response to Comments and NPRM, CEQ revises the last 
sentence of Sec.  1505.2(c) to require agencies to prepare a monitoring 
and compliance plan consistent with Sec.  1505.3.
    Section 1505.2(c) does not require agencies to include enforceable 
mitigation measures in every decision subject to NEPA or require them 
to adopt mitigation in any circumstance; rather, the provision 
reinforces the integrity of environmental reviews by ensuring that if 
an agency assumes as part of its analysis that mitigation will occur 
and will be effective, the agency takes steps to ensure that this 
assumption is correct, including by making the mitigation measures 
enforceable.
    This provision does not prohibit agencies from approving proposals 
with unmitigated adverse environmental effects or from approving 
proposals that include unenforceable mitigation measures so long as the 
agency does not rely on the effective implementation of those measures 
to determine the potential reasonably foreseeable effects of the 
action. Rather, the provision only prohibits an agency from basing its 
environmental analysis on mitigation that the agency cannot be 
reasonably sure will occur. If an agency treats the proposal's 
unmitigated effects as ``reasonably foreseeable,'' and analyzes them in 
its environmental review, then the rule does not require the agency to 
make the mitigation measures discussed in the environmental document 
enforceable or to identify the authority for those measures.
    The text in the final rule is consistent with CEQ's longstanding 
position that agencies should not base their NEPA analyses on 
mitigation measures that they lack the authority to carry out or to 
require others to carry out. CEQ agrees with the commenters that 
enforcing mitigation measures will generally rely on authorities 
conferred on the agency (or other participating agencies) by statutes 
other than NEPA. Rather than duplicating work done under those other 
statutes, however, the requirement to identify those authorities will 
help integrate NEPA with other

[[Page 35517]]

statutory processes and promote efficiency and transparency.
    Finally, CEQ proposed to strike paragraph (b) of 40 CFR 1505.2 
(2020), requiring a decision maker to certify in the ROD that the 
agency considered all of the submitted alternatives, information, and 
analyses in the final EIS, consistent with paragraph (b) of 40 CFR 
1502.17 (2020), and stating that such certification is entitled to a 
presumption that the agency considered such information in the EIS. CEQ 
proposed to strike this paragraph because such certification is 
redundant--the discussion in the ROD and the decision maker's signature 
on such document have long served to verify the agency has considered 
the entirety of the EIS's analysis of the proposed action, 
alternatives, and effects, as well as the public comments received. As 
a result, the certification that this paragraph required could have the 
unintended consequence of suggesting that the agency has not considered 
other aspects of the EIS, such as the comments and response to 
comments, in making the decision. CEQ also proposed this change because 
agencies are entitled to a presumption of regularity under the tenets 
of generally applicable administrative law, rather than this 
presumption arising from NEPA; therefore, CEQ considers it 
inappropriate to address in the NEPA regulations.
    CEQ also proposed to strike paragraph (b) for consistency with its 
proposal to remove the exhaustion provision in 40 CFR 1500.3 (2020), as 
discussed in section II.B.3. As CEQ discussed in that section, CEQ now 
considers it more appropriately the purview of the courts to make 
determinations regarding exhaustion. Therefore, to the extent that the 
certification requirement was intended to facilitate the exhaustion 
provision in 40 CFR 1500.3 (2020), it is no longer necessary.
    As discussed in section II.B.3, CEQ considered the comments 
regarding the exhaustion-related provisions and is removing them in 
this final rule. While most commenters discussed the provisions 
collectively, at least one commenter recommended removing this 
certification provision because it created an additional compliance 
burden on agencies without improving efficiency or reducing litigation 
risk. CEQ agrees that the certification provision does not increase 
efficiency or reduce litigation risk, and that this is an additional 
reason to remove this provision. For the reasons discussed here and in 
section II.B.3, CEQ removes this paragraph in the final rule. As noted 
in this section, CEQ considers such certification to be redundant to 
the decision maker's signature on a ROD, which indicates that the 
decision maker has considered all of the information, including the 
public comments.
2. Implementing the Decision (Sec.  1505.3)
    CEQ proposed to add provisions to Sec.  1505.3 for mitigation and 
related monitoring and compliance plans. To accommodate the changes, 
CEQ proposed to designate the undesignated introductory paragraph of 40 
CFR 1505.3 (2020) as paragraph (a) and redesignate 40 CFR 1505.3(a) and 
(b) (2020) as Sec.  1505.3(a)(1) and (a)(2), respectively. CEQ makes 
these reorganizational changes in the final rule with two clarifying 
edits to Sec.  1505.3(a). First, CEQ adds an introductory clause in 
Sec.  1505.3, ``[i]n addition to the requirements of paragraph (c) of 
this section,'' to distinguish the discussion of monitoring in 
paragraph (a) from the new monitoring and compliance plans provided for 
in paragraph (c). Second, CEQ deletes ``lead'' before agency in the 
last sentence for consistency with the prior sentence, stating that the 
lead or other appropriate consenting agency shall implement mitigation 
committed to as part of the decision.
    CEQ proposed to add new Sec.  1505.3(b) to encourage lead and 
cooperating agencies to incorporate, where appropriate, mitigation 
measures addressing a proposed action's significant adverse human 
health and environmental effects that disproportionately and adversely 
affect communities with environmental justice concerns. CEQ proposed 
this addition to highlight the importance of considering environmental 
justice and addressing disproportionate effects through the NEPA 
process and the associated decision. CEQ proposed this addition based 
on public and agency feedback received during development of this 
proposed rule requesting that this rule address mitigation of 
disproportionate effects. Additionally, CEQ proposed this change to 
encourage agencies to incorporate mitigation measures to address 
disproportionate burdens on communities with environmental justice 
concerns.
    Numerous commenters opposed CEQ's proposed addition of Sec.  
1505.3(b), pointing to the Supreme Court's decision in Robertson v. 
Methow Valley Citizens Council, 490 U.S. 332 (1989). These commenters 
stated that as a procedural statute, NEPA does not empower CEQ to 
require agencies to adopt mitigation measures. In contrast, other 
commenters supported CEQ's inclusion of the proposed new language in 
Sec.  1505.3(b), and in some cases, encouraged CEQ to go further to 
require agencies to mitigate adverse effects to communities with 
environmental justice concerns.
    CEQ finalizes Sec.  1505.3(b) as proposed with two edits. The final 
rule includes ``into its decision'' after ``incorporate'' to clarify 
where agencies incorporate mitigation measures and does not include 
``adverse'' after ``significant'' since ``significant effects'' is 
defined to only be adverse effects. CEQ has long encouraged agencies, 
as a policy matter, to adopt mitigation measures that will reduce the 
adverse environmental effects of their actions.\100\ The addition of 
the language in Sec.  1505.3(b) is consistent with this approach 
without imposing new legal requirements on Federal agencies.
---------------------------------------------------------------------------

    \100\ See, e.g., CEQ, Mitigation Guidance, supra note 10, at 
3847 (``CEQ encourages agencies to commit to mitigation to achieve 
environmentally preferred outcomes, particularly when addressing 
unavoidable adverse environmental impacts'').
---------------------------------------------------------------------------

    CEQ recognizes the Supreme Court's holding in Methow Valley that 
NEPA does not require ``that a complete mitigation plan be actually . . 
. adopted,'' 490 U.S. at 352, and has not changed its longstanding 
position that ``NEPA in itself does not compel the selection of a 
mitigated approach.'' \101\ Accordingly, this provision does not impose 
any binding requirements on agencies, but rather codifies a portion of 
CEQ's longstanding position that agencies should, as a policy matter, 
mitigate significant adverse effects where relevant and appropriate, in 
particular for ``actions that disproportionately and adversely affect 
communities with environmental justice concerns.'' The encouragement to 
agencies to mitigate disproportionate and adverse human health and 
environmental effects on communities with environmental justice 
concerns is grounded in NEPA, which, while not imposing a requirement 
to mitigate adverse effects, nonetheless does ``set forth significant 
substantive goals for the Nation.'' See Vt. Yankee, 435 U.S. at 558. 
Specifically, NEPA declares that the purposes of the statute are ``to 
promote efforts which will prevent or eliminate damage to the 
environment and biosphere and stimulate the health and welfare of 
[people]''; establishes ``the continuing policy of the Federal 
Government'' to ``assure for all Americans safe, healthful, productive, 
and esthetically and culturally pleasing surroundings'' and to 
``preserve important historic, cultural, and natural aspects of our 
national heritage''; and ``recognizes that each person should

[[Page 35518]]

enjoy a healthful environment.'' 42 U.S.C. 4321, 4331(a), (b)(2), 
(b)(4), (c).
---------------------------------------------------------------------------

    \101\ See id. at 3844.
---------------------------------------------------------------------------

    CEQ's policy guidance has long ``encourage[d] agencies to commit to 
mitigation to achieve environmentally preferred outcomes, particularly 
when addressing unavoidable adverse environmental impacts.'' \102\ 
CEQ's choice to encourage agencies in Sec.  1505.3(b) to mitigate, 
``where relevant and appropriate,'' the significant effects of 
``actions that disproportionately and adversely affect communities with 
environmental justice concerns,'' reflects the particular importance of 
addressing environmental justice. CEQ does not intend the codification 
of its encouragement to mitigate this category of effects to imply that 
CEQ does not also continue to encourage agencies to commit to 
mitigation more broadly as set forth in CEQ's guidance. Rather, CEQ has 
determined to focus the regulation on mitigation where actions 
disproportionately and adversely affect communities with environmental 
justice concerns, due to its heightened policy concern when actions 
further burden communities that already experience disproportionate 
burdens.
---------------------------------------------------------------------------

    \102\ See id. at 3847.
---------------------------------------------------------------------------

    Next, CEQ proposed to revise the text in paragraph (c) regarding 
mitigation and strike 40 CFR 1505.3(d) (2020) regarding publication of 
monitoring results, and replace them with new language in Sec.  
1505.3(c) regarding the contents of a monitoring and compliance plan. 
As proposed, this provision would require agencies to prepare a 
monitoring and compliance plan in certain circumstances when the agency 
commits to mitigation in a ROD, FONSI, or separate document. CEQ 
proposed to require agencies to prepare a plan for any mitigation 
committed to and adopted as the basis for analyzing the reasonably 
foreseeable effects of a proposed action, not just mitigation to 
address significant effects. In the NPRM, CEQ explained that it views 
such plans as necessary in order for an agency to conclude that it is 
reasonably foreseeable that a mitigation measure will be implemented, 
and, therefore, that the agency does not have to analyze and disclose 
the effects of the action without mitigation because they are not 
reasonably foreseeable. The proposal would not require a monitoring and 
compliance plan where an agency analyzes and discloses the effects of 
the action without the mitigation measure because, in that 
circumstance, the agency would not base its identification of 
reasonably foreseeable effects on the mitigation measure.
    CEQ received many comments both supporting and opposing the 
requirement for mitigation monitoring and compliance plans under 
prescribed circumstances. Supporters of the proposed changes generally 
expressed concerns that without monitoring and compliance plans, 
agencies' assumptions regarding the ability of mitigation to reduce the 
adverse effects of the proposed action may be speculative. Opponents of 
the changes, meanwhile, raised similar concerns to those raised in 
connection with the language in Sec.  1505.2(c) regarding the 
enforceability of mitigation, as discussed in section II.G.1. 
Specifically, commenters expressed concern that enforceable mitigation 
would be required in every case, and that the requirement for 
enforceability would discourage project proponents from proposing 
voluntary mitigation. These commenters also noted that NEPA does not 
require or authorize CEQ to require detailed mitigation plans and 
expressed concern that preparing monitoring and compliance plans would 
be duplicative and burdensome. Commenters also suggested that CEQ 
require monitoring plans in a broader range of cases; require plans to 
include more detailed information regarding effectiveness and 
uncertainty; require agencies to engage the public in connection with 
mitigation plans; and provide guidance on topics including interagency 
coordination and mitigation funding.
    In the final rule, CEQ strikes paragraph (d) of 40 CFR 1505.3 
(2020) and revises Sec.  1505.3(c) to require the lead or cooperating 
agency to prepare and publish a monitoring and compliance plan for 
mitigation in certain circumstances identified in Sec.  1505.3(c)(1) 
and (c)(2)--the final rule subdivides the text from proposed paragraph 
(c) to improve readability. The final rule clarifies that an agency 
must publish the plan. While publication is implied in the proposed 
rule, since such plans would be completed in or with the ROD or FONSI, 
and these documents must be published, commenters requested CEQ address 
this explicitly in the final rule, and CEQ has done so to avoid any 
confusion over whether agencies must publish these plans.
    CEQ revises the language from the proposed rule to make clear that 
agencies must prepare such plans when the following conditions are met. 
First, the analysis of the reasonably foreseeable effects of a proposed 
action in an EA or EIS is based on implementation of mitigation. 
Second, the agency incorporates the mitigation into its ROD, FONSI, or 
separate decision document.
    As with the requirements related to mitigation enforceability in 
Sec.  1505.2(c), this provision does not require agencies to include 
mitigation monitoring and compliance plans for every action subject to 
NEPA or even for every decision that includes mitigation. Rather, the 
final rule requires the agency to prepare and publish a mitigation 
monitoring and compliance plan when an agency bases its identification 
of the reasonably foreseeable effects of the action, as required by 
section 102(2)(C) of NEPA, on implementation of mitigation. 
Specifically, the statutory text requires an agency to identify the 
``reasonably foreseeable environmental effects'' of the proposed 
action; to the extent that identification assumes the implementation of 
mitigation measures to avoid adverse effects, it follows, in turn, that 
implementation of mitigation must also be reasonably foreseeable. The 
preparation of a monitoring and compliance plan therefore provides the 
agency with reasonable certainty that the mitigation measures upon 
which it has based its effects analysis will be implemented, and 
therefore, that the effects of the action in the absence of mitigation 
do not need to be analyzed and disclosed to satisfy the requirements of 
the NEPA statute. For example, if an agency concluded that issuing a 
permit allowing fill of five acres of wetlands would not have a 
significant effect based on the applicant's agreement to restore five 
acres of comparable wetlands in the same watershed, then the agency has 
based its conclusion that the action to grant the permit does not have 
significant effects on implementation of the mitigation measure and 
would need to prepare a monitoring and compliance plan. The same would 
be true if the agency's analysis in its EA or EIS found that 
authorizing the filling of five acres of wetlands would not have a 
reasonably foreseeable effect on the availability of wetlands habitat 
in the watershed based on the implementation of the wetlands 
restoration measure.
    The language in Sec.  1505.3 builds on CEQ's longstanding positions 
regarding the information that agencies must include in NEPA documents 
when agencies choose to base their effects analysis on the 
implementation of mitigation measures. To the extent that other 
authorities may require monitoring and compliance plans, agencies 
should leverage those existing plans to comply with the requirements of 
the rule, rather than duplicating efforts.

[[Page 35519]]

    CEQ proposed paragraphs (c)(1) and (c)(1)(i) through (c)(1)(vi) of 
Sec.  1505.3 to describe the contents of a monitoring and compliance 
plan and provide agencies flexibility to tailor plans to the complexity 
of the mitigation that the agency has incorporated into a ROD, FONSI, 
or other document. Contents should include a description of the 
mitigation measures; the parties responsible for monitoring and 
implementation; how the information will be made publicly available, as 
appropriate; the anticipated timeframe for implementing and completing 
the mitigation; the standards for compliance with the mitigation; and 
how the mitigation will be funded.
    A commenter suggested that CEQ require in Sec.  1505.3(c)(1)(v) 
that the standards address effectiveness of the mitigation. CEQ 
declines to make this change in the final rule. The goal of this 
provision is to ensure that agencies have reasonable certainty that 
mitigation measures that serve as the basis for the effects analysis 
will be implemented, and therefore, that the effects of the action in 
the absence of implementation of mitigation are not reasonably 
foreseeable and can be excluded from the analysis. Agencies 
appropriately evaluate the effectiveness of mitigation measures as part 
of the NEPA process and rely on various techniques, such as adaptive 
management plans, to address circumstances where there is substantial 
uncertainty over effectiveness, for example where a mitigation measure 
is new or novel.
    CEQ finalizes these paragraphs in Sec.  1505.3(d) and (d)(1) 
through (d) as proposed, with an addition to Sec.  1505.3(d) to 
reference the monitoring and compliance plan required by paragraph (c). 
Agencies may tailor monitoring and compliance plans to the particular 
action, but they should contain sufficient detail to inform the 
participating and cooperating agencies and the public about relevant 
considerations, such as the magnitude of the environmental effects that 
would be subject to mitigation, the degree to which the mitigation 
represents an innovative approach, any technical or other challenges 
with implementation, the time frame for implementation and monitoring, 
and other relevant facts that support a determination that the 
mitigation will be implemented. Where a proposed action involves more 
than one agency, the lead and cooperating agencies should 
collaboratively develop a monitoring and compliance plan that clearly 
defines agency roles and avoids duplication of effort.
    Requiring agencies to prepare a monitoring and compliance plan for 
mitigation in the circumstances identified in paragraph Sec.  1505.3(c) 
is intended to address concerns that mitigation measures included in 
agency decisions are not always carried out. If it is reasonably 
foreseeable that a mitigation measure will not be implemented, then the 
agency cannot appropriately base its analysis of the effects of the 
action on the implementation of the mitigation measure. A monitoring 
and compliance plan will address this concern and support an agency 
relying on mitigation for purposes of analyzing and disclosing the 
reasonably foreseeable environmental effects of a proposed action, as 
required by section 102(2)(C) of NEPA, and, in some circumstances, 
concluding that a FONSI is appropriate.
    Finally, CEQ proposed to add a new paragraph (c)(2) to provide that 
any new information developed through the monitoring and compliance 
plan would not require an agency to supplement its environmental 
documents solely because of this new information. CEQ proposed this 
provision to clarify that the existence of a monitoring and compliance 
plan by itself would not mean that the action to which it relates is an 
ongoing action if it would otherwise be considered completed.
    CEQ received comments supporting, opposing, and asking CEQ to 
clarify proposed Sec.  1505.3(c)(2). In the final rule, CEQ includes 
proposed paragraph (c)(2) at Sec.  1505.3(e) with some revisions to the 
proposal. CEQ revises the beginning of the first sentence to clarify 
that where an action is incomplete or ongoing, the information 
developed through the monitoring and compliance plan itself cannot 
induce the requirement to supplement or revise environmental documents. 
CEQ includes this provision to avoid perverse incentives that could 
lead agencies to adopt less effective monitoring and compliance plans, 
or forgo commitments to mitigation entirely, to avoid revision and 
supplementation. This clarification is also consistent with the purpose 
of the monitoring and compliance plan, which is to ensure that the 
agency has a reasonable basis for assessing environmental effects at 
the time that it makes its decision, rather than creating a new 
obligation for ongoing NEPA analysis after a decision is made. Second, 
CEQ adds an additional sentence at the end of the paragraph to clarify 
that the ongoing implementation of a monitoring and compliance plan by 
itself is not an incomplete or ongoing Federal action that induces 
supplementation under Sec. Sec.  1501.5(h) or 1502.9(d).
    The changes to Sec.  1505.3 are consistent with the final rule's 
revisions to Sec.  1505.2(c), which direct agencies to adopt and 
summarize a monitoring and enforcement program for any enforceable 
mitigation requirements or commitments for a ROD, and to Sec.  
1501.6(a) to clarify the use of mitigated FONSIs. The changes also 
provide more consistency in the content of monitoring and compliance 
plans, increase transparency in the disclosure of mitigation measures, 
and provide the public and decision makers with relevant information 
about mitigation measures and the process to comply with them.

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

    CEQ proposed multiple revisions to part 1506, as described in this 
section. As noted in section II.C.8, CEQ proposed to move 40 CFR 1506.6 
(2020), ``Public involvement,'' to Sec.  1501.9, ``Public and 
governmental engagement.'' CEQ did not propose changes to Sec.  1506.2, 
``Elimination of duplication with State, Tribal, and local 
procedures;'' Sec.  1506.4, ``Combining documents;'' or Sec.  1506.8, 
``Proposals for legislation,'' but invited comments on whether it 
should make changes to these provisions in the final rule.
    CEQ received several general comments of support on Sec.  1506.2 
regarding elimination of duplication with State, Tribal, and local 
procedures, and one commenter suggested the final rule change Sec.  
1506.2(d) to require rather than recommend that EISs describe how the 
agency will reconcile an inconsistency between the proposed action and 
an approved State, Tribal, or local plan or law. CEQ declines to make 
this change to this longstanding language from the 1978 regulations. As 
also noted in this provision, NEPA does not require such 
reconciliation.
    CEQ did not receive any recommendations to amend Sec.  1506.4 
regarding combining documents, though one commenter requested 
additional guidance on use of this and other provisions to facilitate 
sound and efficient decision making and avoid duplication. Finally, CEQ 
received one comment on Sec.  1506.8 regarding legislative EISs, 
requesting CEQ include public notification and participation 
requirements for legislative EAs/EISs in Sec.  1506.8(b). CEQ notes 
that consistent with Sec.  1506.8(c), agencies must provide for public 
notice and seek comment like any other draft EIS. After considering 
these comments, CEQ has determined to finalize the rule without making 
changes to Sec. Sec.  1506.2, 1506.4, or 1506.8.

[[Page 35520]]

1. Limitations on Actions During NEPA Process (Sec.  1506.1)
    CEQ proposed to edit Sec.  1506.1(b) to provide further clarity on 
the limitations on actions during the NEPA process to ensure that 
agencies and applicants do not take actions that will adversely affect 
the environment or limit the choice of reasonable alternatives until an 
agency concludes the NEPA process.
    CEQ proposed to amend the last sentence in paragraph (b), which 
provides that agencies may authorize certain activities by applicants 
for Federal funding while the NEPA process is ongoing. To better align 
this provision with NEPA's requirements, CEQ proposed to add a clause 
to the sentence clarifying that such activities cannot limit the choice 
of reasonable alternatives, and the Federal agency must notify the 
applicant that the agency retains discretion to select any reasonable 
alternative or the no action alternative regardless of any potential 
prior activity taken by the applicant prior to the conclusion of the 
NEPA process. CEQ also proposed this revision to provide additional 
clarity consistent with Sec.  1506.1(a) and the 2020 Response to 
Comments, which state that this provision allows certain activities to 
proceed, prior to a ROD or FONSI, so long as they do not have an 
adverse environmental impact or limit the choice of reasonable 
alternatives.\103\ The NPRM also noted that the proposed change is 
responsive to comments received on the 2020 rule expressing concern 
that the existing language could allow pre-decisional activities to 
proceed that would inappropriately narrow the range of alternatives 
considered by an agency.
---------------------------------------------------------------------------

    \103\ CEQ, 2020 Response to Comments, supra note 69, at 356.
---------------------------------------------------------------------------

    A few commenters expressed support for the proposed changes to 
Sec.  1506.1(b), including commenters who also requested additions to 
the list of examples of potentially permissible activities. Several 
other commenters opposed the proposed language, pointing to sector-
specific reasons; citing cases where courts issued preliminary 
injunctions predicated on a ruling that limiting reasonable 
alternatives before the NEPA analysis is complete is irreparable harm; 
citing cases where courts ruled that undertaking project actions before 
NEPA is completed undermines the law; and asserting that allowing any 
economic investment in an action before completing the NEPA process 
undermines confidence in agency decisions.
    Some commenters opposed the examples of activities an agency could 
authorize, asserting that land rights acquisition and long lead time 
equipment purchases are apt to bias agency decision making and 
recommended CEQ revise the list to prohibit acquisition of interests in 
land, purchase of long lead-time equipment, and purchase options made 
by applicants before NEPA review.
    One commenter asserted that the proposed revisions to paragraph (b) 
undermine the value of an agency authorization and recommended the 
provision state that project applicants may proceed at their own risk 
without agency authorization. Another commenter requested that CEQ add 
language to paragraph (b) to provide Tribes with more flexibility to 
undertake interim actions.
    CEQ considered the comments and finalizes Sec.  1506.1(b) as 
proposed with two additional revisions. Specifically, CEQ changes the 
phrase ``non-Federal entity'' to ``applicant'' in the first sentence of 
paragraph (b) for consistency with the definition of ``applicant'' 
added to Sec.  1508.1(c) and does not include the phrase ``potential 
prior'' before the word ``activity,'' so that the provision requires 
notification that the agency retains discretion regardless of any 
activity taken by the applicant prior to the conclusion of the NEPA 
process. CEQ has deleted this phrase because, upon further 
consideration, it considers it to be confusing because the sentence 
refers to activity taken prior to the conclusion of the NEPA process, 
and, therefore, the earlier use of ``prior'' is redundant and the use 
of ``potential'' is unnecessary because such activity would be actual 
and not potential at the conclusion of the NEPA process. CEQ considers 
the provision as revised to strike the right balance between preserving 
the integrity of the NEPA process, including preserving an agency's 
right to select no action or a reasonable alternative, and providing 
applicants sufficient flexibility to make business decisions. This 
approach is consistent with the fact that NEPA applies to Federal 
agencies and does not directly regulate applicants (unless the 
applicants are themselves Federal agencies). This approach is also 
consistent with longstanding practice under Sec.  1506.1. Further, 
applicants are in the best position to assess and determine their 
tolerance for risk, and agencies should never be unduly influenced by 
these decisions in their NEPA processes.
    CEQ also proposed to strike ``required'' in paragraph (c). This 
edit is consistent with Sec.  1501.11, which encourages, but does not 
require, the use of programmatic environmental reviews.
    A few commenters opposed the proposed change to paragraph (c), 
asserting that it is contrary to NEPA and multiple other laws by 
restricting actions during discretionary or non-required programmatic 
environmental reviews. One commenter stated that the proposal would 
authorize agencies to suspend programs like Federal coal leasing while 
environmental studies are ongoing, and that NEPA does not provide 
agencies with authority for such action. The commenter asserted that 
expanding proposed Sec.  1506.1 beyond required programmatic 
environmental reviews is arbitrary and capricious because CEQ has 
failed to describe a valid purpose for the deletion.
    CEQ has reviewed this provision in response to comments and retains 
``required'' in the final rule. CEQ also revises ``programmatic 
environmental review'' to ``environmental review for a program'' to 
revert to the approach in the 1978 regulations. The 2020 rule changed 
``program'' EIS to ``programmatic environmental review'' stating that 
``programmatic'' is the term commonly used by NEPA practitioners.\104\ 
However, paragraphs (c) and (c)(1) continue to refer to ``program,'' 
and the definition of ``programmatic environmental document'' in Sec.  
1508.1(ee) is not limited to reviews of programs, but extends other 
reviews such as reviews of groups of related actions. To resolve any 
ambiguity, the final rule is using ``program'' throughout these 
paragraphs and changes ``existing programmatic review'' to 
``environmental document.'' CEQ also notes that the longstanding 
principles set forth in paragraph (c)--that agencies must comply with 
NEPA for specific Federal actions before taking the action and that 
agencies cannot engage in activities that prejudice the outcome of the 
NEPA process--apply to programmatic environmental reviews irrespective 
of whether a programmatic review is required.
---------------------------------------------------------------------------

    \104\ CEQ, 2020 Final Rule, supra note 39, at 43327.
---------------------------------------------------------------------------

2. Adoption (Sec.  1506.3)
    CEQ proposed changes to Sec.  1506.3 in the NPRM to facilitate an 
agency's adoption of the EISs, EAs, and CE determinations of another 
agency in an appropriate and transparent manner. As CEQ noted in the 
proposed rule, the 2020 regulations expanded Sec.  1506.3 to codify 
longstanding agency practice of adopting EAs and explicitly allowed for 
adoption of other agencies' CE determinations. CEQ proposed

[[Page 35521]]

modifications to Sec.  1506.3 to improve clarity, reduce redundancy, 
and ensure that when an agency adopts an EIS, EA, or CE determination, 
the agency conducts an independent review to determine that the EIS, 
EA, or CE determination meets certain basic standards. CEQ also 
proposed to add new requirements regarding the adoption of another 
agency's CE determination to increase public transparency.
    Comments on the proposed changes to Sec.  1506.3 expressed both 
opposition and support for adoption in general, the approach to 
enabling adoption taken in the proposed rule, and its application to 
EISs, EAs, and CE determinations. Commenters who supported the adoption 
provisions as proposed point to the efficiencies gained in reducing 
time. Commenters who opposed CEQ's proposed changes asserted that the 
proposed rule went beyond the intended goal of NEPA and that adoption 
limits public engagement. Additionally, one commenter requested that 
throughout this section, CEQ replace ``substantially the same'' with 
``the same'' to strengthen the requirements for adoption.
    CEQ finalizes the proposed changes to Sec.  1506.3 as discussed in 
this section. CEQ disagrees that adoption goes beyond NEPA's intended 
goals. Because actions must be substantially the same, the public will 
have had the opportunity to engage during the preparation of the 
original document to the extent engagement is required or appropriate 
for that particular action; and, where the actions are not 
substantially the same, additional public engagement may be required 
consistent with the requirements for the document type. Additionally, 
the CEQ regulations have provided for adoption since 1978 and included 
the ``substantially the same'' standard. Such language is critical to 
facilitating adoption because agency actions are often not the same, 
but relate to the same overall project. For example, one agency's 
funding decision is not the same action as another agency's decision to 
issue a permit. However, if the underlying activity analyzed in the 
NEPA document is the same project, then adoption is appropriate.
    In paragraph (a), which provides that an agency may adopt EISs, EAs 
or CE determinations, CEQ proposed to strike the language requiring an 
EIS, EA, or CE determination to meet relevant standards and instead 
articulate the standards in paragraphs (b) through (d), which address 
adoption of EISs, EAs, and CE determinations, respectively. CEQ 
proposed to replace this clause with language that requires adoption to 
be done ``consistent with this section.'' CEQ proposed to remove 
``Federal'' before the types of documents an agency may adopt as 
unnecessary and to make clear that agencies can adopt NEPA documents 
prepared by non-Federal entities that are doing so pursuant to 
delegated authority from a Federal agency. See, e.g., 23 U.S.C. 327. 
CEQ makes these changes in the final rule as proposed.
    In paragraph (b), CEQ proposed to add text after the heading 
``Environmental impact statements'' to provide that an agency may adopt 
a draft or final EIS, or a portion of a draft or final EIS, if the 
adopting agency independently reviews the statement and concludes it 
meets the standards for an adequate statement pursuant to the CEQ 
regulations and the adopting agency's NEPA procedures.
    A commenter opposed the proposed requirement for agencies to 
confirm that an adopted EIS, as well as an EA under paragraph (c), 
meets the standards of the adopting agency's NEPA procedures. The 
commenter asserted that this requirement is burdensome and can cause 
delays. One commenter also asserted that paragraph (b) requires 
standards for EIS adoption in agency NEPA procedures and that because 
agencies have a year to adopt new procedures, this will set adoption 
back by a year.
    CEQ finalizes the changes to paragraph (b) as proposed but replaces 
``a draft or final'' EIS with ``another agency's draft or final'' EIS 
to respond to commenters' requests for additional clarity and for 
consistency with the existing phrasing in paragraph (d). CEQ disagrees 
that requiring adopting agencies to assess consistency with their 
procedures will add substantial additional burden. Ensuring consistency 
with the adopting agency's procedures is a codification of longstanding 
agency practice and is necessary so that an agency can ensure that the 
adopted document satisfies the requirements applicable to the adopting 
agency. CEQ also disagrees that agencies must update their procedures 
to address adoption before they can make use of this tool. While 
agencies may consider including the adoption process in their 
procedures, Sec.  1507.3 does not require agencies to do so and does 
not preclude an agency from using adoption before its procedures are 
updated. Therefore, CEQ disagrees with the commenter's assertion that 
agencies cannot adopt EISs until their agency NEPA procedures are 
updated.
    In paragraph (b)(1), which addresses adoption of an EIS for actions 
that are substantially the same, CEQ proposed to insert ``and file'' 
after ``republish'' to improve consistency with Sec.  1506.9 and 
because agencies must both publish the EIS and file it with EPA. 
Further in paragraph (b)(1), CEQ proposed to add text to clarify that 
agencies should supplement or reevaluate an EIS if the agency 
determines that the EIS requires additional analysis.
    One commenter questioned if the phrase ``or reevaluate it as 
necessary'' means an agency could adopt an EIS through an EA and FONSI. 
Another commenter requested that CEQ more clearly require agencies to 
supplement an EIS, interpreting the proposed rule text to encourage, 
rather than require, supplementation when there is new or updated data. 
Similarly, the commenter also requested that CEQ define when it is 
necessary to supplement or reevaluate an EA in paragraph (c). CEQ 
finalizes this provision with an additional revision to change ``the 
statement requires supplementation'' to ``the statement may require 
supplementation consistent with Sec.  1502.9 of this subchapter,'' 
which adds a cross-reference to the section of the regulations 
addressing supplementation and reevaluation. CEQ includes these 
revisions to clarify that agencies can conduct additional analysis to 
determine whether the supplementation criteria of Sec.  1502.9(d) are 
met or document why supplementation is not required. This revised 
provision codifies agency practice and provides agencies more 
flexibility to use the efficiency mechanism of adoption while also 
ensuring that the analysis included in an adopted document is valid and 
complete. For example, if an agency is adopting an EIS that was 
prepared several years prior, and there is more recent data or updated 
information available on one of the categories of effects, the agency 
may need to do additional analysis if the supplementation standard in 
Sec.  1502.9(d) is met, or document in a reevaluation, consistent with 
Sec.  1502.9(e), why the supplementation standard is not met. 
Similarly, if an action is not substantially the same, and the adopting 
agency determines that the EIS requires supplemental analysis, the 
agency would treat the EIS as a draft, prepare the additional analysis, 
and publish the new draft EIS for notice and comment. Where a proposed 
action is not substantially the same, an agency must, at minimum, 
supplement the adopted EIS to ensure it adequately covers its proposed 
action.
    In paragraph (b)(2), which addresses adoption of an EIS by a 
cooperating agency, CEQ proposed to clarify that this provision is 
triggered when a

[[Page 35522]]

cooperating agency does not issue a joint or concurrent ROD consistent 
with Sec.  1505.2. In the proposed rule, CEQ explained that this 
provision covers instances when a cooperating agency adopts an EIS for 
an action the cooperating agency did not anticipate at the time the EIS 
was issued, such as a funding action for a project that was not 
contemplated at the time of the EIS. In such instances, the cooperating 
agency may issue a ROD adopting the EIS of the lead agency without 
republication of the EIS. CEQ proposed to strike the text at the end of 
paragraph (b)(2) regarding independent review because CEQ proposed to 
capture that standard in paragraph (b).
    CEQ did not receive comments on its proposed changes to paragraph 
(b)(2). Therefore, CEQ finalizes this provision consistent with its 
proposal.
    In paragraph (c), CEQ proposed to add language to clarify the 
standard for adopting an EA, which mirrors the standard for adoption of 
an EIS. CEQ similarly proposed edits to align the process with the 
processes for EISs by clarifying that the adopting agency may adopt the 
EA, and supplement or reevaluate it as necessary, in its FONSI.
    A few commenters opposed the adoption of EAs, in particular 
expressing opposition to the adoption of draft EAs or EAs that are the 
subject of formal dispute resolution or litigation, and suggested these 
should instead be incorporated by reference pursuant to Sec.  1501.12. 
One commenter requested that CEQ revise paragraph (c) to align it with 
paragraph (d) to require agencies to document the reasons for its 
adoption and make its reasoning publicly available.
    In the final rule, CEQ finalizes the text as proposed in paragraph 
(c) with an additional revision to replace ``an environmental 
assessment'' with ``another agency's environmental assessment'' to 
respond to commenters' requests for additional clarity and for 
consistency with the same change to paragraph (b) and the existing 
language in paragraph (d). For the reasons articulated with respect to 
EISs, CEQ revises the language that if an agency determines an EA ``may 
require supplementation consistent with Sec.  1501.5(h) of this 
subchapter,'' it may adopt and supplement or reevaluate the EA as 
necessary and issue its FONSI. CEQ agrees that an agency may only adopt 
a final EA, and that use of a draft EA through incorporation by 
reference is appropriate. However, CEQ interprets the proposed text as 
precluding adoption of a draft EA and, therefore, does not consider 
additional revisions necessary to address this comment. The reference 
to EAs in this section necessarily means final EAs, since the 
regulations do not require a draft and final EA; therefore, the 
reference to EA without specification means a final EA.
    For additional clarity, CEQ proposed to add ``determinations'' to 
the title of paragraph (d). CEQ also proposed to revise this paragraph 
to improve readability and clarify that the adopting agency is adopting 
another agency's determination that a CE applies to a particular 
proposed action where the adopting agency's proposed action is 
substantially the same. As CEQ noted in the proposed rule, this 
provision does not allow an agency to unilaterally use another agency's 
CE for an independent proposed action; rather, the process for such 
reliance on another agency's CE is addressed in Sec.  1501.4(e).
    To ensure that there is public transparency for adoption of CE 
determinations, like adoption of EAs and EISs, CEQ proposed new 
paragraphs (d)(1) and (d)(2) to require agencies to document and 
publish their adoptions of CE determinations, such as on their website. 
CEQ proposed in paragraph (d)(1) to specify that agencies must document 
a determination that the proposed action is substantially the same as 
the action covered by the original CE determination, and there are no 
extraordinary circumstances present requiring preparation of an EA or 
EIS. Because agencies typically already make such determinations in the 
course of adopting CE determinations for actions that are substantially 
the same, CEQ has concluded that this documentation requirement will 
not be onerous or time consuming. In paragraph (d)(2), CEQ proposed to 
require agencies to publicly disclose when they are adopting a CE 
determination. CEQ stated in the proposed rule that this proposed 
change was intended to increase transparency on use of CEs to respond 
to feedback from stakeholders that they often do not know when an 
agency is proceeding with a CE. This adds a standard to adoption of CE 
determinations that is similar to the practice for adoption of EAs and 
EISs. Agencies, however, have flexibility to determine how to make this 
information publicly available, including through posting on an 
agency's website.
    One commenter requested that CEQ require an agency to both publish 
a determination on its website and make it publicly available in other 
ways, as opposed to one or the other. CEQ declines to require agencies 
to publish CE adoption determinations in multiple places as 
unnecessarily burdensome on agencies. However, CEQ notes that the 
language in paragraph (d)(2) does not preclude agencies from both 
publishing an adoption of a CE determination on its website and making 
it publicly available in other ways when they determine doing so is 
appropriate. CEQ finalizes these paragraphs as proposed with one 
clarifying change to add introductory language at the end of paragraph 
(d)--``In such circumstances the adopting agency shall''--to make clear 
that paragraphs (d)(1) and (d)(2) apply when adopting another agency's 
CE determination to distinguish this process from the adoption process 
under Sec.  1501.4(e).
3. Agency Responsibility for Environmental Documents (Sec.  1506.5)
    CEQ proposed modifications and additions to Sec.  1506.5 to clarify 
the roles and responsibilities for agencies, applicants, and agency-
directed contractors in preparing environmental documents and to make 
the provision consistent with section 107(f) of NEPA, which requires 
agencies to prescribe procedures to allow project sponsors to prepare 
EAs and EISs under the agencies' supervision and to independently 
evaluate and take responsibility for such documents. 42 U.S.C. 
4336a(f). The 2020 rule amended Sec.  1506.5 to allow an applicant to 
prepare EISs on behalf of the agency; however, the 2023 amendments to 
NEPA make clear that agencies themselves must establish procedures for 
project sponsors to prepare EAs and EISs, not the CEQ regulations. As 
noted in the NPRM, CEQ understands the 2023 amendments to NEPA to use 
the terms ``applicant'' and ``project sponsor'' interchangeably and, 
therefore, CEQ proposed to use the term ``applicant'' and, in the final 
rule, CEQ uses and defines the term ``applicant.'' See section II.J.1. 
However, as discussed further in this section, CEQ notes that the 2023 
NEPA amendments' requirement that agencies establish procedures for 
project sponsors to prepare EAs and EIS does not affect the ability of 
applicants and project sponsors to provide information to agencies to 
assist agencies or their agency-directed contractors in the preparation 
of environmental documents consistent with Sec.  1506.5(c).
    CEQ received multiple comments that generally supported the 
proposed changes to allow applicants to prepare EAs and EISs, as well 
as multiple commenters who generally opposed the provision and opposed 
section 107(f) of NEPA, 42 U.S.C. 4336a(f). CEQ discusses these 
comments and responses in section II.I.3 of this final rule, which 
addresses the statutory

[[Page 35523]]

requirement for agencies to prescribe applicant procedures.
    In paragraph (a), CEQ proposed to clarify that regardless of who 
prepares an environmental document--the agency itself, a contractor 
under the direction of the agency, or the applicant pursuant to agency 
procedures--the agency must ensure the document is prepared with 
professional and scientific integrity using reliable data and 
resources, consistent with sections 102(2)(D) and (2)(E) of NEPA, 42 
U.S.C. 4332(2)(D)-(E), and exercise its independent judgment to review, 
take responsibility for, and briefly document its determination that 
the document meets all necessary requirements and standards related to 
NEPA, the CEQ regulations, and the agency's NEPA procedures.
    A few commenters provided suggestions for CEQ to consider regarding 
the changes in paragraph (a). These commenters asked CEQ to define what 
``under the supervision of the agency'' means; require agencies to 
fully rather than briefly document its determination that an 
environmental document meets the standards of NEPA, the CEQ 
regulations, and the agency's NEPA procedures; and adopt a clearer 
standard for guaranteeing professional and scientific integrity to 
ensure all EISs and EAs receive the same level of scrutiny regardless 
of who prepares them.
    Multiple commenters also provided feedback on the language in 
paragraph (a) referring to agency procedures adopted pursuant to Sec.  
1507.3(c)(12), which are discussed in section II.I.3 of this final 
rule.
    In the final rule, CEQ makes a few clarifying updates to the 
proposed text in paragraph (a). Specifically, CEQ revises the paragraph 
heading to ``agency responsibility'' to clarify that this paragraph 
addresses agency responsibility for environmental documents generally. 
CEQ adds ``and direction'' after ``supervision'' to better distinguish 
contractors under the supervision of the agency from applicant-directed 
contractors. This provision addresses contractors hired directly by the 
agency and third-party contractors where the applicant pays for the 
contractor but otherwise has no role in directing that contractor 
during the preparation of the document; rather, the agency supervises 
and provides the direction. Contractors hired by the applicant and 
supervised by the applicant directly are covered by the language in the 
regulation addressing applicant-prepared EAs and EISs pursuant to Sec.  
1507.3(c)(12).
    CEQ declines to specifically define ``supervision'' as this is a 
commonly understood term, and CEQ considers the addition of the word 
``direction'' in this paragraph to capture the appropriate role of 
agencies, which have decades of experience with supervising the work of 
contractors preparing NEPA documents. CEQ also declines to require 
agencies to do more than briefly document their determination that an 
environmental document meets the standards under NEPA, the regulations 
in this subchapter, and the agency's NEPA procedures. In general, NEPA 
documents themselves demonstrate that they meet these standards; the 
determination required by this paragraph merely requires that an agency 
documents that it has also made this determination.
    Lastly with respect to paragraph (a), CEQ declines to include 
standards for scientific and professional integrity. These concepts 
have been in the regulations since 1978, and the final rule further 
clarifies these concepts by moving 40 CFR 1502.23 (2020) to Sec.  
1506.6 as discussed further in section II.H.4.
    In the NPRM, CEQ proposed in the second sentence of paragraph (b) 
to remove text providing that agencies may direct an applicant to 
prepare an environmental document and also replace the phrase 
``environmental document'' with specific reference to EAs or EISs. CEQ 
also proposed to add a clause to allow agencies to authorize a 
contractor to draft a FONSI or ROD, while also providing that the 
agency is nevertheless responsible for the accuracy, scope, and 
contents of contractor-drafted FONSIs and RODs. CEQ proposed to add 
this clause because a FONSI or ROD represents an agency's conclusions 
regarding potential environmental effects and other aspects of a 
proposed action. CEQ also proposed these changes to exclude applicants 
from directly preparing EAs and EISs under this section, given the 
direction in section 107(f) of NEPA that a lead agency must prescribe 
procedures to allow a project sponsor to prepare an EA or EIS, 42 
U.S.C. 4336a(f), and CEQ proposed to require agencies to include these 
procedures as part of their agency NEPA procedures in Sec.  
1507.3(c)(12). CEQ also proposed these edits to clarify the role of 
contractors because finalizing and verifying the contents of FONSIs and 
RODs is appropriately the responsibility of the Federal agency and is 
consistent with longstanding agency practice.
    CEQ received comments expressing confusion regarding this paragraph 
given the reference to applicants in the first sentence. CEQ also 
received multiple comments interpreting this provision to allow 
applicants to prepare draft FONSIs or RODs. Some of these commenters 
objected to this perceived allowance asserting that applicants should 
not be allowed to draft decision documents because they are biased and 
have a conflict of interest. Conversely, three commenters supported the 
ability of applicants, contractors, or project sponsors to prepare 
FONSIs and RODs, pointing to time and cost savings, with one commenter 
specifically interpreting section 107(f) of NEPA, 42 U.S.C. 4336a(f), 
to allow applicants to prepare all environmental documents. One 
commenter suggested CEQ edit the beginning of the second sentence of 
proposed paragraph (b) to address conflict of interest by adding a 
qualifier that would limit the applicability of the paragraph to 
circumstances in which an agency has established the absence of any 
conflict of interest.
    In the final rule, CEQ addresses the confusion around this 
provision by separating the provisions related to applicants from 
provisions related to agency-directed contractors. First, CEQ revises 
the paragraph heading for paragraph (b) to read ``applicant 
information'' and retains the first sentence allowing agencies to 
require applicants to submit environmental information for agency use 
in preparing an environmental document. The CEQ regulations have long 
allowed agencies to collect information from applicants to help them 
prepare NEPA documents, and CEQ considers this allowance essential to 
an efficient environmental review process because in many cases, the 
applicant will already have obtained or be in the best position to 
obtain information that an agency needs.
    Second, in paragraphs (b)(1) through (b)(3) of the final rule, CEQ 
includes the provisions that provide directions related to applicant-
provided information. Paragraph (b)(1) retains the first sentence from 
paragraph (b)(1) of the proposed rule, which provides that agencies 
should outline the information that the agency needs from the applicant 
to prepare an environmental document.
    Paragraph (b)(2) retains the requirement in the current regulations 
and proposed paragraph (b)(2) that the agency independently evaluate 
the environmental information provided by an applicant and be 
responsible for the accuracy, scope, and contents of any applicant-
provided environmental information included in the environmental 
document. CEQ does not require agencies to specifically document their 
evaluation of this information since the agencies are

[[Page 35524]]

responsible for preparing the NEPA document, and therefore any 
applicant-provided environmental information included in the NEPA 
document becomes the agency's responsibility. While paragraph (a) 
requires agencies to briefly document its determination that a 
contractor-prepared environmental document meets the standards under 
NEPA, the CEQ regulations, and the agency's NEPA procedures, requiring 
an agency to specifically address each piece of information or analysis 
provided by an applicant that the agency has incorporated into an 
environmental document would be burdensome. Under this provision, 
agencies have discretion to integrate applicant-provided information in 
environmental documents as the agency sees fit, and the agency is 
responsible for the accuracy of that information, just as it is 
responsible for the accuracy of information from other sources that the 
agency relies upon. And, as with all NEPA documents, the agencies are 
responsible for ensuring their documents are appropriately scoped and 
satisfy all legal requirements including compliance with these 
regulations and their agency NEPA procedures. Lastly, CEQ includes a 
new paragraph (b)(3) to note that an agency may allow applicants to 
prepare EAs or EISs consistent with agency procedures issued pursuant 
to section 107(f) of NEPA, 42 U.S.C. 4336a(f), and Sec.  1507.3(c)(12).
    Third, the second sentence of proposed Sec.  1506.5(b) becomes 
paragraph (c) in the final rule, and CEQ adds a paragraph heading, 
``Agency-directed contractor,'' to clarify that this provision 
addresses contractors where the agency supervises and directs their 
work. CEQ adds ``and direction'' after ``supervision'' for consistency 
with its edit in paragraph (a) and to clarify that this provision does 
not apply to contractors hired and overseen by applicants. In the final 
rule, CEQ does not revise ``environmental document'' to be 
``environmental assessment or environmental impact statement'' or 
include the language allowing an action to authorize a contractor to 
draft a FONSI or ROD. Since this provision is specific to agency-
directed contractors, and an agency may direct a contractor in helping 
to draft any environmental document, these limitations are unnecessary.
    Fourth, paragraph (c)(1) of the final rule contains the second 
sentence of proposed Sec.  1506.5(b)(1) and requires agencies to 
provide their contractors guidance, and participate in and supervise 
the environmental document's preparation. Fifth, paragraph (c)(2) of 
the final rule addresses proposed Sec.  1506.5(b)(2) and requires 
agencies to independently evaluate contractor-prepared environmental 
documents, be responsible for their accuracy, scope, and contents, and 
document the evaluations in the environmental documents themselves. As 
discussed earlier in this section, CEQ addresses applicant-submitted 
information in paragraph (b)(2).
    One commenter requested that CEQ add in proposed paragraph (b)(2), 
which is Sec.  1506.5(c)(2) in the final rule, a requirement for 
agencies to explain how it independently evaluated the information 
prepared by the contractor and upon what basis the agency is able to 
vouch for the accuracy, scope, and contents of the information or 
documents submitted. This comment aligns with other commenters who 
requested that CEQ strengthen agency responsibility for the accuracy, 
scope, and contents of environmental documents.
    CEQ declines to add greater specificity about how agencies must 
evaluate and document their evaluations. Such evaluations may vary 
greatly depending on what the agency is evaluating and setting a 
regulatory standard would be inappropriate and inefficient. Further, 
the level of evaluation needed may vary depending on the guidance and 
direction agencies provide to the contractors in the first place.
    Fifth, paragraph (c)(3) of the final rule requires agencies to 
include the names and qualifications of the persons preparing and 
independently evaluating the contractor-prepared environmental 
documents, such as in the list of preparers for EISs, consistent with 
Sec.  1502.18. This provision is identical to proposed Sec.  
1506.5(b)(3), in which CEQ proposed to remove the reference to 
applicants as discussed earlier in this section.
    Next, CEQ proposed to revise paragraph (b)(4) of 40 CFR 1506.5 
(2020) to clarify that the Federal agency is responsible for preparing 
a disclosure statement for the contractor to execute, specifying that 
the contractor does not have any financial or other interest in the 
outcome of the proposed action.
    CEQ received multiple comments regarding the proposed changes to 
paragraph (b)(4). One commenter expressed that the paragraph provides 
for less disclosure than the 1978 regulations did. One commenter 
expressed direct support for the paragraph and encouraged CEQ to retain 
the disclosure requirement. Another commenter requested that CEQ delete 
``where appropriate'' interpreting the clause to modify ``shall 
prepare'' instead of ``cooperating agency'' and arguing deletion of 
this clause will minimize conflicts of interest. One commenter opposed 
paragraph (b)(4), asserting that it is not workable for a contractor to 
have no financial or other interest in the outcome of an action because 
it is common for a firm that assists with preparing the NEPA documents 
to perform subsequent engineering and design work if a project moves 
forward.
    CEQ finalizes this provision in Sec.  1506.5(c)(4) as proposed, but 
adds ``where appropriate'' to precede rather than follow (as proposed) 
``a cooperating agency'' to make it clear that the clause modifies 
``cooperating agency.'' CEQ makes this change in the final rule to 
address commenters' concerns that the provision, as drafted in the 
proposed rule, would have given agencies the discretion whether to 
prepare a disclosure statement. The revised language is generally 
consistent with the approach in the 1978 regulations, and CEQ disagrees 
that it provides for less disclosure than the 1978 regulations. CEQ 
does not consider the potential for a contractor to perform future 
engineering and design work to present a conflict of interest in the 
outcome of an action. Instead, a conflict of interest would exist if a 
contractor possessed a direct financial interest in the project, for 
example if it entered into a contingency fee arrangement that provided 
for an additional payment if an agency authorized an action. However, 
CEQ encourages agencies to disclose this information to the public in 
their contractor disclosure statements.
    Finally, CEQ proposed to change ``any agency'' to ``an agency'' in 
paragraph (b)(5). In the final rule, CEQ redesignates paragraph (b)(5) 
of 40 CFR 1506.5 (2020) to be paragraph (d) as this paragraph is a 
general statement about the operations of Sec.  1506.5 and is not 
specific to agency-directed contractors. CEQ adds a paragraph heading, 
``Information generally'' for consistency with the paragraph headings 
added throughout.
4. Methodology and Scientific Accuracy (Sec.  1506.6)
    As discussed in section II.D.18, in the final rule, CEQ moves the 
provision on methodology and scientific accuracy, from proposed Sec.  
1502.23 to Sec.  1506.6, because this provision is generally applicable 
to NEPA reviews. As discussed further in this section, CEQ finalizes 
the text from proposed Sec.  1502.23 with additional clarifying edits.

[[Page 35525]]

    CEQ proposed to separate 40 CFR 1502.23 (2020) into paragraphs (a) 
and (b), with some modification, and add a new paragraph (c). In the 
final rule, CEQ further subdivides these paragraphs for additional 
clarity.
    First, the first sentence of proposed Sec.  1502.23(a), which is 
the opening sentence of 40 CFR 1502.23 (2020), requires agencies to 
ensure the professional integrity, including scientific integrity, of 
the discussions and analyses in environmental documents. This sentence 
has been in the regulations unchanged since 1978, is consistent with 
section 102(2)(D) of NEPA, 42 U.S.C. 4332(2)(D), and CEQ did not 
propose any revisions to this sentence in the proposed rule. CEQ 
finalizes this sentence in a standalone paragraph, Sec.  1506.6(a), in 
the final rule.
    Second, CEQ proposed to use the term high-quality information, 
which the 1978 regulations required agencies to use, see 40 CFR 1500.1 
(2019), in the second sentence of proposed Sec.  1502.23(a). CEQ 
proposed to clarify that such information includes best available 
science and reliable data, models, and resources.
    Some commenters requested that CEQ add definitions for ``high-
quality information'' and ``best available science.'' One commenter 
expressed that ``high-quality information'' is ambiguous and 
recommended CEQ remove it. Other commenters interpreted the example 
best available science to set a standard and asserted that this 
conflicts with the direction in section 102 of NEPA to establish 
information quality standards. Some commenters opposed the use of best 
available science and stated that the high-quality information standard 
is sufficient to ensure scientific integrity.
    A few commenters pointed to case law to support their opinion that 
NEPA does not require agencies to use the best scientific methodology 
available. These commenters expressed concerns that a best available 
science standard could result in increased costs and delays that may 
not be justified and instead supported the high-quality information 
standard. Another commenter asserted that a best available science 
standard could be inconsistent with the rule of reason, which is 
supported by case law, and result in agencies unreasonably gathering 
information to meet a best available science standard. Conversely, 
another commenter stated that the reference to best available science 
and data is consistent with the rule of reason and relevant case law.
    In Sec.  1506.6(b) of the final rule, CEQ makes the change in the 
second sentence of proposed Sec.  1502.23(a) to require agencies to use 
high-quality information. For clarity, CEQ replaces the last clause of 
the sentence, ``to analyze effects resulting from a proposed action and 
alternatives,'' with a more general clause at the beginning of the 
first sentence of Sec.  1506.6(b) to avoid an ambiguity in the proposed 
text that could be read to imply that agencies do not need to rely on 
high-quality information for aspects of their environmental documents 
other than analyzing the effects of a proposed action and alternatives. 
CEQ did not intend to suggest that agencies can rely on anything other 
than high-quality information in their decision making, and the 
revision in the final rule makes clear that agencies must use high-
quality information ``[i]n preparing environmental documents.'' Given 
the more general language in the NEPA statute and the general 
applicability of this provision, CEQ considers this phrasing to more 
accurately reflect the standard. CEQ includes, with minor 
reorganization, three of the proposed examples of high-quality 
information in the final rule: ``reliable data,'' ``models,'' and 
``resources.'' The final rule uses the combined phrase ``reliable data 
and resources'' as one example to directly track the provision in 
section 102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), with ``models'' being 
another example. CEQ also notes that the Information Quality Act (Pub. 
L. 106-554, 44 U.S.C. 3516 note) and other authorities establish 
requirements for the quality, utility, objectivity, and integrity of 
the information that agencies disseminate, including, in some cases, 
requirements for peer review, and agencies should ensure compliance 
with those authorities as applicable.\105\
---------------------------------------------------------------------------

    \105\ See OMB, Guidelines for Ensuring and Maximizing the 
Quality, Objectivity, Utility, and Integrity of Information 
Disseminated by Federal Agencies, 67 FR 8452 (Feb. 22, 2002); OMB, 
Final Information Quality Bulletin for Peer Review, 70 FR 2664 (Jan. 
14, 2005); and OMB, M-19-15, Improving Implementation of the 
Information Quality Act (2019), https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf.
---------------------------------------------------------------------------

    In the final rule, CEQ does not include ``best available science'' 
as an example of high-quality information. While CEQ considers ``best 
available science'' to be one example of high-quality information, CEQ 
agrees with commenters that NEPA does not require use of ``best 
available science'' in order to meet the statute's requirement for 
professional integrity, including scientific integrity. While CEQ did 
not intend for the inclusion of ``best available science'' as one 
example of ``high quality information'' in the proposed rule to require 
agencies to use the best available science, based on the comments, CEQ 
is concerned that this text could be misconstrued by agencies and 
potential litigants to require use of best available science in all 
cases. Therefore, CEQ does not include this example in the final rule 
to avoid any confusion.
    Third, in the preamble to the proposed rule, CEQ provided 
Indigenous Knowledge as an example of high-quality information. Several 
commenters recommended CEQ include this as an example in the regulatory 
text to make clear that Indigenous Knowledge can constitute high-
quality information upon which agencies could rely consistent with the 
regulations. One commenter expressed concern about the addition of 
Indigenous Knowledge in the preamble because the commenter worried that 
agencies may weigh Indigenous Knowledge more heavily than other sources 
of scientific expertise. Another commenter requested that CEQ define 
``Indigenous Knowledge'' and explain how agencies can best use it as 
high-quality information. Some commenters provided a suggested 
definition, while others opposed CEQ defining ``Indigenous Knowledge'' 
in the rule.
    In the final rule, CEQ includes Indigenous Knowledge as an example 
of high-quality information in the regulatory text. CEQ disagrees with 
the concern that identifying Indigenous Knowledge as an example of 
high-quality information--whether in the preamble or regulatory text--
requires agencies to weigh this knowledge more heavily than other 
sources of scientific expertise. The regulations require agencies to 
rely on high-quality information and provide several examples, one of 
which is Indigenous Knowledge, and do not create a preference for one 
kind of high-quality information over others. CEQ declines to define 
Indigenous Knowledge in the regulations as it did not receive 
sufficient input from commenters or through its Tribal consultation for 
it to develop an appropriate definition that could apply to all of the 
contexts in which Federal agencies operate governed by the CEQ 
regulations. Additionally, while some Tribes provided feedback on a 
definition, others expressed concerns about a regulatory definition. 
While CEQ is not including a definition in the final rule, CEQ notes 
that agencies may look to the CEQ/OSTP guidance as a resource, and CEQ 
will consider whether additional guidance is needed to help agencies 
incorporate Indigenous Knowledge into its NEPA reviews.

[[Page 35526]]

    Fourth, CEQ proposed to include a clause in the second sentence of 
proposed Sec.  1502.23(a) to reference that high-quality information 
includes existing sources and materials. This proposed change moved the 
word ``existing'' in the second sentence of 40 CFR 1502.23 (2020) to 
the end of the sentence. CEQ proposed these changes to clarify that 
while agencies must use reliable data and resources, which can include 
existing data and resources, they are not limited to using existing 
sources and materials. CEQ proposed these changes in response to public 
commenters on the 2020 rule and Federal agency experts who raised 
concerns that the 2020 language could limit agencies to ``existing'' 
resources and preclude agencies from undertaking site surveys and 
performing other forms of data collection, which have long been 
standard practice when analyzing an action's potential environmental 
effects and may be necessary for agencies to adequately understand 
particular effects.
    Some commenters stated the removal of the word ``existing'' in 
proposed paragraph (a) is in conflict with section 106(b)(3) of NEPA, 
42 U.S.C. 4336(b)(3), because it suggests agencies have the discretion 
to undertake new, non-essential scientific or technical research 
without regard for whether the information to be obtained is essential 
to a reasoned choice among alternatives or for the cost or time 
considerations under NEPA. Another commenter requested that CEQ amend 
this statement to specify that where project-specific data is 
available, agencies should rely on that information rather than 
theoretical models. One commenter suggested that CEQ clarify that while 
new research may not be required, agencies must consider new 
information in their analyses.
    In the final rule, CEQ replaces the proposed clause in the second 
sentence of proposed Sec.  1502.23(a), ``including existing sources and 
materials,'' with a new sentence, ``Agencies may rely on existing 
information as well as information obtained to inform the analysis,'' 
to make clear that agencies can and should rely on existing 
information, but may also undertake new or additional information 
gathering as needed to adequately analyze their proposed actions. For 
example, in the context of analyzing historical, cultural, or 
biological effects, agencies may need to conduct survey work or 
reassess existing survey work periodically. Requiring an agency to rely 
on outdated data would not comport with sections 102(2)(D) through (F) 
of NEPA, 42 U.S.C. 4332(2)(D)-(F). While there are numerous reliable 
data sources for a variety of resources analyzed in NEPA documents, and 
the CEQ regulations encourage the use of existing information wherever 
possible, see Sec.  1501.12, agencies should be permitted to exercise 
their judgment in determining when additional data and analyses are 
necessary for their analyses and decision making.
    Fifth, CEQ moves the third sentence of 40 CFR 1502.23 (2020), which 
allows agencies to use any reliable data sources, such as remotely 
gathered information or statistical models to be the third sentence of 
Sec.  1506.6(b) in the final rule and makes the clarifying edits 
consistent with the proposal.
    Sixth, CEQ proposed to add a new sentence at the end of proposed 
Sec.  1502.23(a) to encourage agencies to explain their assumptions and 
any limitations of their models and methods. CEQ proposed this addition 
to support this section's overall purpose of ensuring the integrity of 
the discussions and analyses in environmental documents. Additionally, 
CEQ proposed this addition to codify typical agency practice to explain 
relevant assumptions or limitations of the information in environmental 
documents.
    A commenter recommended CEQ change the proposed new sentence from a 
recommendation to a requirement, stating that it is necessary for 
agencies to explain relevant assumptions or limitations of any models 
or methodologies on which they rely for their analyses to adequately 
inform the public and the agency decision makers. CEQ agrees that 
disclosing this information is necessary in order for the decision 
maker and the public to assess the reliability of the information. 
Therefore, CEQ includes the proposed sentence at the end of Sec.  
1506.6(b), but changes ``should'' to ``shall'' in the final rule.
    Seventh, in proposed Sec.  1502.23(b), CEQ proposed to strike the 
statement that agencies are not required to undertake new research to 
inform their analyses, consistent with the proposed change to proposed 
Sec.  1502.23(a) regarding existing information. Some commenters 
opposed the proposed deletion of this language in proposed Sec.  
1502.23(b) and disagreed with CEQ's rationale for the deletion, stating 
that the existing language could not be reasonably read to prohibit 
agencies from undertaking additional analyses. One commenter opposed 
the proposed deletion, expressing concern that without the language, 
agencies may feel compelled to complete new research, which could 
interfere with agencies' ability to provide services, not just 
analysis, in contravention of NEPA's broad purposes in sections 101(a) 
and (b) of NEPA, 42 U.S.C. 4331(a)-(b) to balance other national 
priorities, including conserving agency resources. Another commenter 
suggested that CEQ clarify that while new research may not be required, 
agencies must consider new information in their analyses. Other 
commenters opposed to the proposed deletion stated that the proposed 
change conflicts with other provisions of the proposed rule, such as 
the intent of proposed Sec.  1506.5(b)(3) for acceptable work to not be 
redone and proposed Sec.  1506.4 to reduce duplication and paperwork. 
Multiple commenters expressed concern that deleting this language could 
result in additional litigation risk and delays by encouraging agencies 
to conduct additional analyses. One commenter also suggested that the 
deletion is unnecessary because agencies already know that they are not 
limited to existing materials.
    CEQ strikes this sentence in the final rule. In order for agencies 
to meet the requirements of the NEPA statute to analyze the effects of 
their proposed actions and, where appropriate, study alternatives, 
while ensuring professional integrity, including scientific integrity, 
CEQ considers it necessary to remove this statement because in some 
instances, in order to meet the statutory requirements, agencies will 
need to undertake research. CEQ disagrees that agencies will read this 
deletion to mean they need to do so in all cases, even where 
unnecessary or unreasonable. As one commenter noted, the CEQ 
regulations have long encouraged agencies to rely on existing 
information and analyses, and incorporate them by reference, see, e.g., 
Sec. Sec.  1501.12, 1506.2, and 1506.3.
    A few commenters stated that the deletion of this text conflicts 
with section 106(b)(3) of NEPA, 42 U.S.C. 4336(b)(3), by implying 
agencies have discretion to undertake new, non-essential scientific or 
technical research without regard to whether the information to be 
obtained is essential to a reasoned choice among alternatives. CEQ 
disagrees with this assertion because section 106(b)(3) expressly 
applies only to an agency's determination of the level of NEPA review 
it needs to perform for an action, and does not apply to the analysis 
in an environmental document. Further, these comments suggest conflict 
with the statute because deleting this sentence disregards direction to 
make use of reliable data and resources. CEQ disagrees that section 
102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), refers only to existing 
reliable data and resources,

[[Page 35527]]

because such a reading of 102(2)(E) would be inconsistent with the 
provision of section 106(b)(3) indicating that agencies are only 
required to undertake new scientific or technical research in 
determining the level of NEPA review in certain circumstances. Rather, 
section 102(2)(E) does not address whether agencies can conduct new 
research or gather new data, but only provides that any data or 
resources an agency relies upon, whether existing or new, must be 
reliable. As noted in this section, it is common practice for agencies, 
when necessary or appropriate, to engage in additional research and 
create new data based on an action's particular circumstances (such as 
the affected environment) when analyzing proposed actions under NEPA. 
By striking the sentence added in 2020, CEQ is not imposing a new 
requirement for agencies to undertake new research in all cases, but 
rather is allowing agencies to continue to exercise their judgment and 
expertise in determining whether and when to undertake new research.
    Eighth, CEQ strikes the last sentence in 40 CFR 1502.23 (2020), 
which the NPRM proposed to retain as the second sentence in proposed 
Sec.  1502.23(b) regarding continued compliance with other statutory 
requirements related to scientific and technical research. In the 2020 
rule, CEQ added this sentence to clarify the preceding sentence that 
agencies are not required to undertake new scientific and technical 
research to inform their analyses. Because the final rule strikes that 
sentence, it is unnecessary to retain the sentence that follows. 
Therefore, the final rule removes the last sentence of 40 CFR 1502.23 
(2020) because it is unnecessary.
    Some commenters suggested additional items be added to proposed 
Sec.  1502.23(b). One commenter requested that CEQ incorporate the 
language from section 106(b)(3) of NEPA, 42 U.S.C. 4336(b)(3), to 
establish a clear standard for when new scientific research is needed. 
As CEQ noted earlier in this section, section 106(b)(3) applies only to 
determining the level of NEPA review. Another commenter requested CEQ 
add language to address information quality standards and transparency 
requirements for modeling. CEQ does not consider this level of detail 
appropriate for the regulations but will consider whether additional 
guidance on this topic could assist agencies in carrying out their NEPA 
responsibilities.
    Ninth, CEQ moves to Sec.  1506.6(c) the first and second sentences 
in proposed Sec.  1502.23(b), which are the fourth and fifth sentences 
in 40 CFR 1502.23 (2020), requiring agencies to identify any 
methodologies used and make explicit reference to the scientific and 
other sources relied upon for conclusions in the environmental 
document, which agencies may place in an appendix. This change improves 
the organizational clarity of the section and is non-substantive.
    Finally, CEQ proposed to add a new paragraph (c) to proposed Sec.  
1502.23 to require agencies to use projections when evaluating 
reasonably foreseeable effects, including climate change-related 
effects, where appropriate. CEQ also proposed to clarify that such 
projections may employ mathematical or other models that project a 
range of possible future outcomes, so long as agencies disclose the 
relevant assumptions or limitations. CEQ proposed this addition for 
consistency with the other proposed amendments to this section.
    Some commenters expressed support for proposed Sec.  1502.23(c) but 
recommended that CEQ provide guidance on how to support agencies in 
evaluating climate modeling projects or add additional language to 
address localized impacts of climate change on a project along with 
global impacts of the project on climate change. Another commenter 
requested that CEQ recommend, rather than require, use of projections, 
while another commenter expressed that the rule strikes an appropriate 
balance between allowing modeling necessary to project future effects 
and providing transparency for public viewing of the modeling on which 
agencies rely.
    One commenter opposed the changes in paragraph (c) to require the 
use of projections because they interpret the language to be referring 
to the social cost of greenhouse gases and argued that this is 
inappropriate for project-specific NEPA reviews. They also offered the 
opinion that social cost of greenhouse gas models is not best available 
science. Another commenter requested CEQ remove the reference to 
climate-change related effects in paragraph (c) because it elevates 
climate change effects over other potential effects. Another commenter 
also expressed concern about the requirement to use projections because 
they asserted it may encourage agencies to attempt to model 
relationships between incremental greenhouse gas emissions from a 
particular project with actual environmental impacts, which is 
impossible, or use metrics like social cost of greenhouse gas 
emissions, which are not suited to environmental reviews. Another 
commenter also expressed concern that the project effects of climate 
change are too difficult to model and that the proposed language could 
create delays and increase litigation risk.
    CEQ includes proposed Sec.  1502.23(c) in the final rule at Sec.  
1506.6(d). CEQ notes that projections are required only where an agency 
considers them appropriate. CEQ disagrees that including the example of 
climate-change related effects elevates these above other effects; it 
is an example, and agencies may determine projections are appropriate 
in analyzing a variety of other effects such as water or air quality, 
or effects on endangered species or historic properties. CEQ also 
disagrees that this language is intended to require agencies to use the 
social cost of greenhouse gases. As discussed in CEQ's 2023 GHG 
guidance, agencies may use this as a proxy to compare alternatives, but 
the regulations and the guidance do not require agencies to use this 
tool.
    As CEQ noted in the proposed rule, based on existing agency 
practice and academic literature, agencies can and do use reliable 
projections to analyze reasonably foreseeable effects, including 
climate change-related effects. Where available and appropriate, 
agencies also can use or rely on projections that are scaled to a more 
targeted and localized geographic scope, such as land use projections, 
air emissions, and modeling, or to evaluate effects, including climate 
effects, experienced locally in relation to the proposed action. When 
doing so, agencies should explain the basis for relying on those 
projections and their underlying assumptions. In particular, climate 
projections can vary based on different factors and assumptions such as 
geography, location, and existing and future GHG emissions, and 
agencies should disclose the assumptions and limitations underlying any 
projection upon which the agency relies. Agencies can use models that 
analyze a range of possible future outcomes, but again agencies must 
disclose the underlying relevant assumptions or limitations of those 
models.
    CEQ expects that modeling techniques will continue to improve in 
the future, resulting in more precise projections. To be consistent 
with Sec.  1506.6, as modeling techniques advance, agencies should 
continue to rely on high-quality information when evaluating reasonably 
foreseeable effects.
5. Further Guidance (Sec.  1506.7)
    CEQ proposed to simplify Sec.  1506.7(a) by deleting references to 
Executive orders that have been revoked. CEQ will continue to provide 
guidance

[[Page 35528]]

concerning NEPA and its implementation on an as-needed basis. Any such 
guidance will be consistent with NEPA, the CEQ regulations, and any 
other applicable requirements. Future guidance could include updates to 
existing CEQ guidance \106\ or new guidance. CEQ also proposed to 
update paragraph (b) to reflect the date upon which the final rule is 
effective. If there is a conflict between existing guidance and an 
issued final rule, the final rule will prevail after the date upon 
which it becomes effective. CEQ did not receive any comments on these 
proposed changes and finalizes this section as proposed.
---------------------------------------------------------------------------

    \106\ See CEQ, CEQ Guidance Documents, https://www.energy.gov/nepa/ceq-guidance-documents.
---------------------------------------------------------------------------

6. Proposals for Regulations (40 CFR 1506.9)
    CEQ proposed to strike 40 CFR 1506.9 (2020), ``Proposals for 
regulations.'' The 2020 rule added this provision to allow agencies to 
substitute processes and documentation as part of the rulemaking 
process for corresponding requirements in these regulations.\107\ Since 
1978, the CEQ regulations have encouraged agencies to combine 
environmental documents with any other agency document to reduce 
duplication and paperwork (40 CFR 1506.4 (2019)), and agencies also may 
combine procedural steps, for example, to satisfy the public comment 
requirements of a rulemaking process and NEPA. See Sec.  1507.3(c)(5). 
As such, CEQ concluded that the provision at 40 CFR 1506.9 (2020) was 
unnecessary to achieve the desired effect of improved efficiency.
---------------------------------------------------------------------------

    \107\ CEQ, 2020 Final Rule, supra note 39, at 43338-39.
---------------------------------------------------------------------------

    CEQ received one comment on this proposed change expressing support 
for the removal of the section. CEQ removes this section as proposed. 
Removing this section avoids confusion and controversy over whether the 
procedures of a separate process meet the requirements of CEQ's 
regulations. Further, courts have questioned whether separate 
regulatory processes can be a substitute for NEPA in some cases. See 
e.g., Sierra Club v Fed. Energy Regul. Comm'n, 867 F.3d 1357, 1375 
(D.C. Cir. 2017) (``[T]he existence of permit requirements overseen by 
another [F]ederal agency or [S]tate permitting authority cannot 
substitute for a proper NEPA analysis.''). Additionally, CEQ does not 
consider it appropriate to single out one particular type of action--
rulemaking--for combining procedural steps. Indeed, one of the key 
objectives of agency NEPA procedures is to integrate the NEPA process 
into other agency processes. Therefore, the more prudent approach is 
for agencies to combine NEPA reviews with other reviews for rulemaking, 
similar to longstanding agency practice to combine NEPA documents with 
other review processes, such as compliance with section 106 of the 
National Historic Preservation Act or section 7 of the Endangered 
Species Act, or set out processes in their NEPA procedures to comply 
concurrently with multiple legal requirements.
7. Filing Requirements (Sec.  1506.9)
    CEQ proposed to redesignate 40 CFR 1506.10 (2020) as Sec.  1506.9, 
which would restore the same numbering for this and subsequent sections 
used in the 1978 regulations. CEQ proposed to replace the acronym for 
EPA with the full name ``Environmental Protection Agency'' here and in 
Sec.  1506.10, consistent with the format in the rest of the CEQ 
regulations. CEQ also proposed to add a new paragraph (c) to clarify 
that agencies must notify EPA when they adopt an EIS consistent with 
Sec.  1506.3(b). CEQ proposed this change to codify common practice and 
guidance from EPA.\108\ EPA notification ensures initiation of the 
appropriate comment or review period. Such notification, even where a 
cooperating agency is adopting an EIS without public comment consistent 
with Sec.  1506.3(b)(1), improves transparency to the public regarding 
the status of the EIS and also helps track the status of EISs across 
the Federal Government.
---------------------------------------------------------------------------

    \108\ EPA must be notified when a Federal agency adopts an EIS 
to commence the appropriate comment or review period. If a Federal 
agency chooses to adopt an EIS written by another agency, and it was 
not a cooperating agency in the preparation of the original EIS, the 
EIS must be republished and filed with EPA. See EPA, Environmental 
Impact Statement Filing Guidance, https://www.epa.gov/nepa/environmental-impact-statement-filing-guidance.
---------------------------------------------------------------------------

    One commenter provided feedback on this proposed change, asking CEQ 
to insert the word ``timely'' or more clearly specify a period within 
which agencies must notify EPA when they adopt EISs. CEQ declines the 
commenter's suggested edit because the language specifies that the 
agency must notify EPA when they adopt the EIS; therefore, notification 
must occur at the same time as adoption. CEQ adds paragraph (c) in the 
final rule to require agencies to file an adoption of an EIS with EPA 
consistent with current practice and agency guidance. CEQ modifies the 
text from the proposal to cross reference to Sec.  1506.3(b)(1) rather 
than require the notice be consistent with Sec.  1506.3(b). It is only 
an adoption made pursuant to Sec.  1506.3(b)(1) that requires agencies 
to file their adoption notices with EPA.
8. Timing of Agency Action (Sec.  1506.10)
    To accommodate the change in numbering described in section II.H.6, 
CEQ proposed to renumber 40 CFR 1506.11 (2020), ``Timing of agency 
action,'' to Sec.  1506.10. CEQ proposed in paragraph (b) to change 
``may not'' to ``shall not'' to eliminate a potential ambiguity and 
make clear that the minimum periods between a draft EIS and ROD as set 
forth in paragraph (b)(1) and between a final EIS and ROD as set forth 
in paragraph (b)(2) are mandatory. CEQ did not receive any comments 
specific to this proposal and revises the final rule consistent with 
the proposal.
    Two commenters requested that CEQ remove the minimum time periods 
prescribed in paragraphs (b)(1) and (2) as well as the minimum 45-day 
public comment period for draft EISs prescribed in paragraph (d), 
asserting that these timing requirements conflict with the statutory 
timeframes. The commenters suggested that CEQ instead allow agencies 
more flexibility for public engagement and comment within the statutory 
timeframes. Another commenter requested that CEQ expand the minimum 
comment period for a draft EIS to 90 days because commenters are often 
not notified of an open comment period until midway through.
    CEQ considered the commenters' suggested changes but declines to 
revise the final rule to adopt them. Agencies and the public have 
worked within these timeframes since issuance of the 1978 regulations. 
CEQ intends these provisions to facilitate a transparent and open 
process that ensures agencies are taking the time to carefully consider 
public input and analyze alternatives prior to making a decision. CEQ 
is concerned that shortening these periods will significantly impede 
the public's ability to engage in the NEPA process. Further, CEQ notes 
that the minimum timeframe between a final EIS and ROD does not 
implicate the statutory deadlines because the statutory timeframe ends 
upon completion of the EIS, not issuance of the EIS.
    Finally, with respect to the concern raised about the delay in 
notification to the public regarding open comment periods, CEQ intends 
the revisions to Sec.  1501.9 regarding public engagement to better 
facilitate notification to interested parties, and considers improving 
notification to be the more appropriate mechanism to address the 
concern that interested parties sometimes do not receive notice until 
partway through a comment period, rather than extending

[[Page 35529]]

the comment period. Agencies must notify the public of opportunities 
for public comment, and CEQ encourages agencies to consider effective 
and efficient ways to do so, such as providing opportunities for the 
public to sign up for distribution lists to be notified of an ongoing 
review and opportunities for engagement.
    CEQ proposed changes to paragraph (c)(1), addressing appeals 
processes, to update this provision to reflect current practices within 
Federal agencies. Specifically, CEQ proposed to change references to 
``appeal processes'' to ``administrative review processes'' and add 
examples, which can include processes such as appeals, objections, and 
protests. CEQ further proposed updates to the text to provide 
flexibility in timing to agencies that use these administrative review 
processes and clarify that such a process may be initiated either prior 
to or after the filing and publication of a final EIS with EPA, 
depending on the specifics of the agency's authorities. Depending on 
the agency involved and its associated authorities, administrative 
review processes generally allow other agencies or the public to raise 
issues about a decision and make their views known. CEQ proposed to 
clarify that the period for administrative review of the decision and 
the 30-day review period prescribed in paragraph (b)(2) for when a ROD 
can be issued may run concurrently. CEQ proposed these changes to 
reflect changes in Federal agency regulations and procedures since this 
text was promulgated in 1978 and to allow for greater efficiency.
    CEQ did not receive comments on these proposed changes and makes 
the changes as proposed in the final rule to better accommodate 
existing agency practices. For example, the U.S. Department of 
Agriculture's Forest Service has an objections process outlined at 36 
CFR part 218 whereby the public can object to a draft decision; these 
regulations replaced the prior appeal process formerly used by the 
agency. To initiate the objections process, Forest Service regulations 
require that the final EIS and a draft ROD be made available to the 
public, but the Forest Service does not have to publish the final EIS 
with EPA until the conclusion of the objections process. See 36 CFR 
218.7(b). The objections process can take 120 to 160 days, during which 
the agency makes the final EIS available to the public. Allowing the 
agency to file the final EIS with EPA and issue a ROD at the same time 
as the conclusion of the objections process rather than waiting an 
additional 30 days following the official filing will avoid 
inefficiency. These changes also will accommodate similar 
administrative review procedures maintained by other agencies. See 
e.g., 43 CFR 1610.5-2 (outlining the Bureau of Land Management (BLM) 
protest procedures).
    CEQ also proposed minor edits in paragraphs (d) and (e) for clarity 
and readability. CEQ did not receive comments on the proposed changes. 
CEQ has made an additional revision to paragraphs (c)(2) and (e) to 
correct the reference to Sec.  1506.9 to Sec.  1506.10.
    Finally, one commenter requested that CEQ remove the language in 
paragraph (e), arguing that the failure to file timely comments is not 
a sufficient reason for extending a timeframe because the public often 
does not find out about the draft EIS until late in the 45-day comment 
period. The commenter stated that CEQ should recognize that agencies do 
not notify the public about when an EA or EIS is released and therefore 
commenters may be late in providing comments because they did not 
receive adequate, proper, timely notification. CEQ declines to make 
this change. As discussed in II.C.8 and II.E.I, Sec.  1501.9 identifies 
requirements for how and when agencies must notify the public of an 
action and Sec.  1503.1 requires agencies to request comments from the 
public on an EIS. Further, agencies have long had the discretion to 
consider special or unique circumstances that may warrant consideration 
of comments outside the public comment period.
9. Emergencies (Sec.  1506.11)
    Consistent with changes in the preceding sections, CEQ proposed to 
renumber 40 CFR 1506.12 (2020), ``Emergencies,'' to Sec.  1506.11. CEQ 
proposed to strike the last sentence, stating other actions remain 
subject to NEPA review because it erroneously implies that actions 
covered by Sec.  1506.11 are not subject to NEPA review. Instead, CEQ 
proposed to replace the sentence with language clarifying that 
alternative arrangements are not a waiver of NEPA; rather, they 
establish an alternative means for NEPA compliance.
    Commenters recommended CEQ make it a requirement rather than a 
recommendation for agencies to consult with CEQ about alternative 
arrangements. Additionally, commenters disagreed with CEQ's deletion of 
the statement that other actions remain subject to NEPA, expressing 
concern that the revised provision would rely on negative implication 
as a substitute for this clear statement.
    In the final rule, CEQ has revised this provision to change 
``should'' to ``shall'' to make clear that agencies must consult with 
CEQ on alternative arrangements for an action with significant effects. 
CEQ agrees with commenters' suggestion, which is consistent with 
longstanding agency practice. Such consultation ensures that the agency 
is limiting the scope of such arrangements to those actions that are 
necessary to address the emergency and that the public is appropriately 
notified and involved in the process. CEQ is also revising ``will'' to 
``shall'' in the second sentence to clarify that this is a regulatory 
requirement rather than a statement of fact. Upon further 
consideration, CEQ retains the clause ``other actions remain subject to 
NEPA review'' and adds the clause ``consistent with this subchapter'' 
to make clear that agencies and CEQ are required to limit such 
arrangements, and that any remaining actions not covered by the 
alternative arrangements must comply with the regulations.
    Finally, CEQ adds the last sentence as proposed to address 
confusion \109\ as to whether, during emergencies, agency actions are 
exempted from NEPA. This addition clarifies that the regulations do not 
create a NEPA exemption; rather, they provide a pathway for compliance 
with NEPA where the exigencies of emergency situations do not provide 
sufficient time for an agency to complete an EIS in conformity with the 
CEQ regulations for an action with significant environmental effects.
---------------------------------------------------------------------------

    \109\ See CEQ, 2020 Response to Comments, supra note 69, at 417-
19.
---------------------------------------------------------------------------

    CEQ does not have the authority to exempt agency actions from NEPA, 
regardless of whether an emergency exists. The changes to Sec.  1506.11 
clarify that CEQ does not offer ``alternative arrangements'' to 
circumvent appropriate NEPA analysis but rather to enable Federal 
agencies to establish alternative means for NEPA compliance to ensure 
that agencies can act swiftly to address emergencies while also meeting 
their statutory obligations under NEPA. CEQ's revisions clarify that 
when emergencies arise, Sec.  1506.11 allows agencies to adjust the 
means by which they achieve NEPA compliance. This approach is also 
consistent with CEQ's guidance on NEPA and emergencies, updated in 
2020.\110\
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    \110\ See CEQ, Emergencies and the National Environmental Policy 
Act Guidance (Sept. 14, 2020), https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf.
---------------------------------------------------------------------------

    Finally, CEQ notes that, consistent with longstanding practice, 
agencies have discretion to determine how to proceed with actions to 
respond to

[[Page 35530]]

emergencies that do not have significant environmental effects, which 
agencies would ordinarily analyze through an EA. Agencies may continue 
to consult with CEQ where they are unsure whether alternative 
arrangements or an EA is the appropriate course of action. And, as 
discussed in section II.I.3, some agencies include procedures for 
addressing such situations in their agency NEPA procedures, and CEQ 
encourages agencies to do so where appropriate for their programs and 
activities.
10. Innovative Approaches to NEPA Reviews (Proposed Sec.  1506.12)
    CEQ proposed to add a new section to the regulations in Sec.  
1506.12 to allow CEQ to grant a request for modification to authorize 
Federal agencies to pursue innovative approaches to comply with NEPA 
and the regulations in order to address extreme environmental 
challenges. CEQ proposed this new concept to be distinct from the 
emergency provisions in Sec.  1506.11 with different considerations and 
criteria.
    Commenters generally opposed this proposed provision. Some 
commenters thought it was unnecessary, and CEQ did not receive concrete 
examples of situations where commenters thought agencies could 
successfully use such approaches. Other commenters were concerned the 
proposal did not contain enough guideposts for agencies. Commenters 
also raised concerns that the lack of notice and comment for rulemaking 
could lead to uncertainty about durability of the provisions and 
potential litigation and delay.
    Upon further consideration, including the public comments received 
on the proposed provision, CEQ is not including this provision in the 
final rule. The mechanisms provided in this final rule, including 
updated provisions on programmatic environmental reviews and agency 
NEPA procedures that should be tailored to agencies' unique programs 
and actions, as well as new methods of establishing or adopting CEs, 
provide agencies sufficient flexibility to innovate and address extreme 
environmental challenges.
11. Effective Date (Sec.  1506.12)
    CEQ proposed to remove the 2020 effective date in Sec.  1506.13 and 
replace it with the date upon which a final rule is effective. CEQ 
received a variety of comments on this provision, including one 
commenter requesting that it require agencies to apply the final rule 
to ongoing actions. Conversely, a group of commenters requested that 
the final rule explicitly state that agencies should follow the NEPA 
regulations that were effective at the time at which the agency 
initiated the environmental review, asserting that allowing agencies 
flexibility to apply the final rule to ongoing actions will cause 
delays, create uncertainty, and increase costs for project proponents.
    Some commenters requested that CEQ revise this section to not allow 
the regulations to apply to a Federal agency's actions until the agency 
adopts new agency procedures under Sec.  1507.3 to avoid confusion and 
inconsistency, and that CEQ provide additional clarity on which version 
of CEQ's regulations and an agency's procedures apply to each Federal 
action moving forward.
    CEQ finalizes this section as proposed in Sec.  1506.12. Section 
1506.12 requires agencies to comply with the regulations for proposed 
actions begun after the effective date of the final rule. Agencies are 
in the best position to determine on a case-by-case basis whether 
applying provisions of the revised regulations to ongoing reviews will 
facilitate a more effective and efficient process, and CEQ declines to 
limit agency flexibility in this regard. Regarding potential conflict 
with existing agency procedures, an agency's existing NEPA procedures 
remain in effect until the agency revises its procedures consistent 
with Sec.  1507.3; however, agencies should read their existing 
procedures in concert with the final rule to ensure they are meeting 
the requisite requirements of both wherever possible. Additionally, CEQ 
notes that the Fiscal Responsibility Act's amendments to NEPA were 
effective upon enactment, so to the extent the regulations implement 
provisions of the NEPA amendments, these are applicable to ongoing 
reviews.
    For the last several years, agencies have had experience 
reconciling differences between their procedures and the current 
regulations, and CEQ is unaware of significant issues that have arisen. 
While certain provisions included in this final rule may be missing 
from agency procedures, these provisions are requirements that agencies 
would need to add to their procedures and are therefore less likely to 
pose a direct conflict or create inconsistencies. Additionally, where 
CEQ is restoring the regulatory text or approach from the 1978 
regulations, CEQ notes that most agency procedures are consistent with 
the 1978 regulations, and therefore there is less likely to be conflict 
with those provisions. To the extent that there is conflict between an 
agency's procedures and CEQ's regulations, the CEQ regulations 
generally will apply, and CEQ is available to assist in addressing any 
such conflicts. Lastly, CEQ notes that Federal agencies would not need 
to redo or supplement a completed NEPA review (e.g., where a CE 
determination, FONSI, or ROD has been issued) as a result of the 
issuance of this rulemaking.

I. Revisions to Agency Compliance (Part 1507)

1. Compliance (Sec.  1507.1)
    CEQ proposed to add a second sentence to Sec.  1507.1 to restore 
language from the 1978 regulations to state that agencies have 
flexibility to adapt their implementing procedures to the requirements 
of other applicable laws. CEQ made this proposal because restoring this 
language is consistent with the changes CEQ made to 40 CFR 1507.3 
(2022) in its Phase 1 rulemaking to restore agency discretion to tailor 
their NEPA procedures to their unique missions and contexts, creating 
opportunity for agencies to innovate and improve efficiency.
    One commenter requested that CEQ delete the first sentence of Sec.  
1507.1, which requires all agencies to comply with the CEQ regulations, 
and add a clause at the end of the proposed second sentence making 
requirements with other applicable laws dependent upon compliance with 
the regulations. The commenter asserted this change would allow an 
agency to tailor its NEPA procedures as appropriate, but make clear 
that the agency still must comply with these regulations.
    Another commenter expressed concerns that the flexibility proposed 
in Sec.  1507.1 will result in inconsistency, especially where a State 
agency serves as a co-lead agency or as a participating agency for a 
project over which multiple Federal agencies have jurisdiction. The 
commenter asserted that the flexibility in the proposed text in Sec.  
1507.1 undermines predictability and consistency and will result in 
delays in the environmental review process.
    CEQ considered the commenters' suggestions and finalizes the 
language as proposed. With respect to the first comment, CEQ considers 
the language in the final rule to be consistent with the commenter's 
objective and longstanding practice: agencies may tailor their 
procedures to their unique programs, but they must also comply with 
NEPA and the CEQ regulations. This point is reinforced in Sec.  1500.6, 
which requires agencies to fully comply with the purposes and 
provisions of the NEPA statute and CEQ's NEPA regulations unless an 
agency activity, decision, or action is exempted from NEPA by law or 
compliance with NEPA is impossible.

[[Page 35531]]

    CEQ disagrees with the other commenter's assertions that this 
provision undermines predictability. To ensure NEPA reviews inform 
decision making, Federal agencies need to integrate the NEPA process 
into the decision-making process, and having a ``one size fits all'' 
approach to agency procedures would not achieve that objective. The CEQ 
regulations encourage agencies to engage in early coordination to 
prevent delays in individual NEPA reviews. Further, the regulations 
have long encouraged agencies to consult with other agencies with which 
they have similar programs or frequently take actions on the same 
projects, and CEQ encourages agencies to strive to reconcile their 
processes as they update their procedures for consistency with this 
rule. See Sec.  1507.3(b)(1).
2. Agency Capability To Comply (Sec.  1507.2)
    CEQ proposed edits to Sec.  1507.2 to emphasize agencies' 
responsibilities under NEPA, including to incorporate the requirements 
added to section 102(2) of NEPA, 42 U.S.C. 4332, and to require 
agencies to designate a Chief Public Engagement Officer. First, CEQ 
proposed to move the first sentence of paragraph (a) of 40 CFR 1507.2 
(2020), which requires agencies to fulfil the requirements of section 
102(2)(A) of NEPA, 42 U.S.C. 4332(2)(A), to use a systematic, 
interdisciplinary approach, to a new Sec.  1507.2(b). Second, CEQ 
proposed to require in Sec.  1507.2(a) that in addition to designating 
a senior agency official responsible for overall agency NEPA 
compliance, agencies identify a Chief Public Engagement Officer who 
would be responsible for facilitating community engagement across the 
agency and, where appropriate, the provision of technical assistance to 
communities.
    CEQ received multiple comments on the requirement for Federal 
agencies to identify a Chief Public Engagement Officer. Numerous 
supportive commenters expressed that this position would benefit all 
stakeholders, quicken public engagement processes by making the 
environmental review processes more accessible and transparent, 
facilitate consistent engagement practices, and promote a level of 
accountability that enhances engagement. Some supportive commenters 
asked CEQ to clarify expectations for the position, such as identifying 
a minimum level of seniority within the agency and to clarify that 
``community engagement'' includes ``industry engagement.'' A couple of 
commenters were supportive of the general idea, but expressed concern 
about how agencies would define the role and whether agencies would 
have resources to support the Officer. A few commenters suggested that 
the person who serves in the position within an agency must be a 
neutral party and trusted expert with necessary experience to be 
effective in the position. Multiple commenters also provided 
suggestions for additional guidance regarding the duties of the Chief 
Public Engagement Officer.
    Several commenters opposed the proposed requirement for agencies to 
designate a Chief Public Engagement Officer asserting that the NEPA 
amendments do not require it; there is lack of clarity on whether this 
position would help mediate resolutions to allow more efficient 
completion of the environmental review process; and it would create a 
burden on agencies because they will need to hire a Chief Public 
Engagement Officer.
    Another commenter raised the concern that by requiring agencies to 
identify a Chief Public Engagement Officer, CEQ is creating a new and 
potentially overlapping position with the Chief Environmental Review 
and Permitting Officer (CERPO) that already exists to manage 
environmental review and authorization processes.
    CEQ considered the comments and includes the requirement in Sec.  
1507.2(a) to identify a Chief Public Engagement Officer with clarifying 
edits. To address commenters' concerns about agency burden and the 
scope of the position, CEQ adds language to clarify that the 
regulations make the Chief Public Engagement Officer responsible for 
facilitating community engagement in environmental reviews and does not 
direct agencies to make the officer responsible for all engagement 
activities within an agency, though agencies have the discretion to 
define the role more broadly should they determine doing so is 
appropriate.
    CEQ also adds a sentence to the end of paragraph (a) to clarify 
that when an agency is a department, it may be efficient for major 
subunits to identify senior agency officials or Chief Public Engagement 
Officers within those subunits. This language is consistent with the 
approach for agency NEPA procedures in Sec.  1507.3(b), and the 
regulations provide that the department-level official or Officer would 
have oversight over the subunit officials or officers. CEQ adds this 
language to provide large departments the flexibility to effectively 
manage their programs while ensuring that there is also centralized, 
consistent coordination across the whole department. CEQ notes that a 
senior agency official must be ``an official of assistant secretary 
rank or higher (or equivalent),'' in accordance with Sec.  1508.1(ll); 
in the case of a senior agency official designated by a major subunit, 
that individual must have a degree of authority and responsibility 
within the subunit that is equivalent to the authority and 
responsibility that an assistant secretary would have within a 
department.
    CEQ notes that Federal agencies may designate current employees to 
serve as the senior agency official and Chief Public Engagement 
Officer, and need not hire new employees. Regarding the variety of 
comments recommending specific responsibilities for the Chief Public 
Engagement Officer, CEQ will consider providing guidance to agencies 
that addresses the role and expectations of the Officer, but CEQ 
considers this level of detail unnecessary for the regulations. Lastly, 
CEQ revises paragraph (a) to strike ``Agencies shall'' from the 
beginning of the paragraph because it is duplicative to the end of the 
introductory paragraph of Sec.  1507.2.
    Third, CEQ proposed to redesignate paragraphs (b) and (c), and (d) 
through (f) of 40 CFR 1507.2 (2020) as Sec.  1507.2(c) and (d), and (h) 
through (j) respectively. CEQ makes these changes in the final rule.
    Fourth, CEQ proposed to add a new paragraph (e) to require agencies 
to prepare environmental documents with professional integrity 
consistent with section 102(2)(D) of NEPA, 42 U.S.C. 4332(2)(D). In a 
new paragraph (f), CEQ proposed to require agencies to make use of 
reliable data and resources, consistent with section 102(2)(E) of NEPA, 
42 U.S.C. 4332(2)(E). And, in a new paragraph (g), CEQ proposed to 
require agencies to study, develop, and describe technically and 
economically feasible alternatives, consistent with section 102(2)(F) 
of NEPA, 42 U.S.C. 4332(2)(F). Finally, in redesignated paragraph (j), 
CEQ proposed to delete the reference to E.O. 13807 because E.O. 13990 
revoked E.O. 13807.\111\
---------------------------------------------------------------------------

    \111\ E.O. 13990, supra note 43.
---------------------------------------------------------------------------

    CEQ did not receive any substantive comments on these proposed 
changes. CEQ finalizes these provisions as proposed.
3. Agency NEPA Procedures (Sec.  1507.3)
    CEQ proposed several updates to Sec.  1507.3 to reorganize 
paragraphs to improve readability, consolidate related provisions, 
restore text from the 1978 regulations, and codify CEQ guidance on CEs. 
First, in paragraphs (a) and (b), CEQ proposed to update the effective 
date to reflect the effective date of a

[[Page 35532]]

final rule. CEQ received several comments expressing concern about 
paragraph (a), which provides that CEQ determined that the CEs 
contained in agency NEPA procedures as of the final rule effective date 
are consistent with the CEQ regulations. Commenters raised concerns 
about the lack of evidence that all CEs are consistent with CEQ's 
proposal and, in some instances, identified particular CEs that the 
commenters stated were inconsistent. Commenters also asked about how 
this provision would interact with Sec.  1507.3(c)(8) and (9) regarding 
the process for establishing and periodically reviewing existing CEs.
    CEQ considered the comments and revises this paragraph in the final 
rule for clarity. CEQ's intent with this provision is to clarify that 
the changes made in the final rule, including revisions to the 
definition of ``categorical exclusion'' and Sec.  1501.4 do not 
implicate the validity of existing CEs. CEQ revises the paragraph to 
clarify that it has determined that the revisions to its regulations 
made in this final rule do not affect the validity of agency CEs that 
are in place as of the effective date of this rule. Further, as 
discussed more in this section, CEQ is encouraging agencies to 
prioritize their older CEs for review.
    Second, in Sec.  1507.3(b), CEQ proposed to give agencies 12 months 
after the effective date to develop proposed procedures and initiate 
consultation with CEQ to implement the CEQ regulations. CEQ also 
proposed moving, with some modification, language from paragraph (c) of 
40 CFR 1507.3 (2022) to Sec.  1507.3(b) for clarity and to improve 
organization since the language is generally applicable to all agency 
NEPA procedures. The NPRM explained that proposed procedures should 
facilitate efficient decision making and ensure that agencies make 
decisions in accordance with the policies and requirements of NEPA.
    One commenter requested that CEQ explicitly state that in the case 
of conflicts, an agency's NEPA procedures supersede the CEQ 
regulations, and that such a statement would increase certainty and 
reduce litigation risks. CEQ declines to add this language. Agencies 
and courts have extensive experience applying both CEQ's regulations 
and agency-specific procedures, and in CEQ's experience, this 
relationship has not led to uncertainty or litigation risk that would 
outweigh the uncertainty that could be created from a new regulatory 
provision on this subject.
    Two commenters asserted that 12 months is not enough time for 
agencies to propose procedures, take public comment, and produce final 
procedures. CEQ declines to revise the timing provided in Sec.  
1507.3(b). While CEQ will work with agencies to update their procedures 
as quickly as possible, agencies only need to provide CEQ with proposed 
revisions within 12 months. Therefore, CEQ considers 12 months 
sufficient for agencies to propose procedures and finalizes Sec.  
1507.3(b) as proposed, except a grammatical change from ``agencies 
make'' to ``the agency makes'' for consistency with the rest of the 
sentence.
    Third, in paragraph (b)(2), CEQ proposed to change ``adopting'' to 
``issuing'' to avoid confusion with adoption under Sec.  1506.3. CEQ 
also proposed to restore text from the 1978 regulations requiring 
agencies to continue to review their policies and procedures and revise 
them as necessary to be in full compliance with NEPA. The 2020 rule 
deleted this language as redundant to language added to paragraph (b) 
of 40 CFR 1507.3 (2020) requiring agencies to update their procedures 
to implement the final rule.\112\
---------------------------------------------------------------------------

    \112\ CEQ, 2020 Final Rule, supra note 39, at 43340.
---------------------------------------------------------------------------

    One commenter opposed CEQ's proposed restoration of this language 
in Sec.  1507.3(b)(2), asserting that the requirement for agencies to 
continually review their NEPA policies and procedures could reduce 
stability because agencies will be in a constant cycle of revision. CEQ 
disagrees with the commenter's assertions because this provision was in 
the 1978 regulations and has not resulted in agencies continually 
updating their procedures. CEQ also considers it important for agencies 
to review their procedures to ensure that they are meeting the intent 
of NEPA and are updated to address any changes to agencies' authorities 
or programs so that the NEPA process is effectively integrated in 
agencies' decision-making processes.
    CEQ makes the changes to paragraph (b)(2) as proposed with one 
additional change in the fourth sentence to change ``to'' to ``and'' 
for clarity. CEQ is restoring this language because the requirement for 
an agency to continue to review their policies and procedures is 
different than the requirement in paragraph (b) to initially update 
procedures consistent with the final rule. Further, restoring this 
requirement is consistent with the requirement in Sec.  1507.3(c)(9) 
for agencies to review CEs at least every 10 years.
    Fourth, CEQ proposed to add a new paragraph (b)(3) to clarify that, 
consistent with longstanding practice, the issuance of new agency 
procedures or an update to existing agency procedures is not itself 
subject to NEPA review. CEQ did not receive comments on this paragraph 
and adds it with the language as proposed in the final rule.
    Fifth, paragraphs (c) and (c)(1) through (c)(10) of 40 CFR 1507.3 
(2022) list the items that all agency NEPA procedures must include, and 
CEQ proposed minor revisions to paragraphs (c)(1) through (c)(4) to 
improve clarity and conciseness. Specifically, CEQ proposed to modify 
paragraph (c)(1) to clarify that agencies should designate the major 
decision points for their programs and actions subject to NEPA and 
ensure that the NEPA process begins at the earliest reasonable time. In 
paragraph (c)(2), CEQ proposed to remove the reference to ``formal'' as 
unnecessarily limiting since agencies generally engage in informal 
rulemaking, and change ``or'' to ``and'' to clarify that agencies 
should make relevant environmental documents, comments, and responses 
part of the record in both rulemakings and adjudicatory proceedings. 
CEQ proposed to modify paragraph (c)(3) to clarify that procedures 
should integrate environmental review into agency decision-making 
processes so that decision makers use the information in making 
decisions. CEQ did not receive comments on these specific changes and 
makes the edits as proposed in the final rule.
    Sixth, CEQ proposed to modify paragraph (c)(5) to emphasize that 
combining environmental documents should be done to facilitate sound 
and efficient decision making and avoid duplication. CEQ proposed to 
strike the language from this paragraph allowing agencies to designate 
and rely on other procedures or documents to satisfy NEPA compliance. 
As discussed further in sections II.C.1 and II.C.2 of the NPRM, CEQ had 
concerns about this language added by the 2020 rule to substitute other 
reviews as functionally equivalent for NEPA compliance, and therefore 
proposed to remove it.
    One commenter stated that paragraph (c)(5) should implement section 
107(b) of NEPA, 42 U.S.C. 4336a(b). Section 107(b) of NEPA addresses 
preparation of a single environmental document for lead and cooperating 
agencies. CEQ addresses this in Sec.  1501.7(g) and therefore declines 
to make this change. The intent of paragraph (c)(5) is to ensure that 
agency procedures require the combination of environmental documents 
with other agency documents in order to facilitate sound and efficient 
decision making and avoid duplication where consistent with

[[Page 35533]]

applicable statutory requirements. CEQ makes the changes to Sec.  
1507.3(c)(5) as proposed.
    Seventh, to consolidate into one paragraph--paragraph (c)--the 
required aspects of agency NEPA procedures, CEQ proposed to move 
paragraphs (e)(1), (e)(2), (e)(2)(i), and (e)(2)(iii) of 40 CFR 1507.3 
(2022) to paragraphs (c)(6), (c)(7), (c)(7)(i) and (c)(7)(ii), 
respectively, with minor wording modification for readability. Proposed 
paragraph (c)(6) addressed procedures required by Sec.  1501.2(b)(4) 
regarding assistance to applicants. Proposed paragraphs (c)(7), 
(c)(7)(i), and (c)(7)(ii) addressed criteria to identify of typical 
classes of action that normally require EISs and EAs.
    One commenter questioned if paragraphs (c)(7)(i) and (ii) are 
intended to make EIS and EA thresholds more definitive. These 
provisions--which have been in the CEQ regulations since 1978 and to 
which CEQ only proposed minor, non-substantive edits for readability--
require agencies to identify their common activities or decisions that 
typically require an EIS or EA. While not determinative for any 
particular action, these lists put the public on notice of the 
decisions agencies regularly make that require these levels of NEPA 
review. CEQ has not substantively changed these provisions and, 
therefore, does not intend for them to affect EIS and EA thresholds or 
otherwise change current practice. CEQ makes the changes to Sec.  
1507.3(6) and (7) as proposed.
    Eighth, CEQ proposed to move with modification paragraph (e)(2)(ii) 
of 40 CFR 1507.3(2022), requiring agencies to establish CEs and 
identify extraordinary circumstances, to paragraph (c)(8). CEQ proposed 
in paragraphs (c)(8)(i) through (c)(8)(iii) to include more specificity 
about the process for establishing new or revising existing CEs, 
consistent with CEQ's 2010 CE guidance and agency practice. CEQ 
proposed to move the existing requirement that agencies identify when 
documentation is required for a determination that a CE applies to a 
proposed action from paragraph (e)(2)(i) of 40 CFR 1507.3 (2022) to 
proposed paragraph (c)(8)(i). CEQ proposed a new paragraph (c)(8)(ii) 
to require agencies to substantiate new or revised CEs with sufficient 
information to conclude that the category of actions does not have a 
significant effect, individually or in the aggregate, and make the 
documentation publicly available for comment. Lastly, CEQ proposed to 
add paragraph (c)(8)(iii) to require agencies to describe how they will 
consider extraordinary circumstances, a concept that was moved from 
paragraph (e)(2)(ii) of 40 CFR 1507.3 (2022). CEQ proposed these 
provisions for consistency with its 2010 guidance and CEQ's 
longstanding practice requiring agencies to demonstrate that agency 
activities are eligible for CEs.\113\
---------------------------------------------------------------------------

    \113\ See CEQ, CE Guidance, supra note 10.
---------------------------------------------------------------------------

    One commenter requested that CEQ revise proposed paragraph 
(c)(8)(i) to require agencies to provide the public with documentation 
of a determination that a CE applies to a proposed action. CEQ declines 
to require agencies to document and publish all determinations that a 
CE applies to an action, as many CEs are used for routine actions with 
no potential for environmental effects and documentation of all 
determinations would result in burdensome and unnecessary paperwork. 
CEQ considers the better approach to be for agencies to identify which 
CEs require documentation and whether to make that documentation 
publicly available.
    One commenter requested that CEQ expand paragraph (c)(8)(ii) to 
preclude agencies from establishing CEs if similar categories of 
actions have historically been controversial, are known to have 
substantial environmental justice considerations, or have previously 
resulted in preparation of an EIS. Another commenter suggested that CEQ 
replace the use of ``or in the aggregate'' with ``cumulative,'' to use 
the term from the 1978 regulations.
    Some commenters opposed proposed paragraph (c)(8)(iii), stating 
that agencies should not have to delineate the extraordinary 
circumstances under which an action normally excluded from further NEPA 
review nonetheless requires additional review. The commenters asserted 
that the proposed section substantially limits the breadth of 
extraordinary circumstances under which an action normally excluded 
requires further review. CEQ disagrees with the commenters' assertions. 
The provision clarifies that an explanation of how the agency will 
consider extraordinary circumstances when applying a proposed CE is a 
necessary component of substantiating the CE. The provision should be 
read in context with the definition of ``extraordinary circumstances'' 
in Sec.  1508.1(o).
    CEQ considers these comments but finalizes the provisions in Sec.  
1507.3(c)(8) and (c)(8)(i) through (iii) as proposed, with one change: 
instead of restating the process for consideration of extraordinary 
circumstances in paragraph (c)(8)(iii), the final rule cross-references 
to Sec.  1501.4(b), which sets for the process for consideration of 
extraordinary circumstances, including documenting when an agency 
determines that a CE applies notwithstanding extraordinary 
circumstances. CEQ declines to make the commenters' recommended 
changes. When establishing CEs, agencies must provide sufficient 
information to CEQ and to the public to substantiate the determination 
that the category of actions normally does not result in significant 
effects. Agencies must also address how they will consider 
extraordinary circumstances in applying CEs. CEQ does not consider it 
appropriate to specify these limitations within its regulations; 
rather, agencies and CEQ must consider these concerns on a case-by-case 
basis when substantiating and reviewing proposed new CEs.
    As discussed further in section II.C.3, CEQ also declines to 
replace ``or in the aggregate'' in the paragraph because it is 
consistent with Sec.  1501.4 on establishment of CEs. CEQ considers 
``individually or in the aggregate'' to have the same meaning as the 
1978 regulation's definition of ``categorical exclusion'' as a category 
of actions that do not ``individually or cumulatively'' have 
significant effects. CEQ uses ``in the aggregate'' instead of 
``cumulatively'' within the regulations to avoid potential confusion 
with the definition of ``effects,'' which includes cumulative effects.
    Ninth, CEQ proposed to add a new paragraph (c)(9) to require 
agencies to include in their NEPA procedures a process for reviewing 
their CEs every 10 years to codify recommendations in CEQ's guidance on 
establishing CEs,\114\ which encourages agencies to review CEs 
periodically. While the guidance recommends every 7 years,\115\ CEQ 
proposed requiring that review occur at least every 10 years because it 
can take about a year to complete the steps involved to conduct such a 
review and revise CEs. These steps typically include conducting the 
analysis, developing a proposal to update procedures to reflect the 
review, consulting with CEQ on any proposed update to procedures, 
soliciting public comment, developing final procedures, and receiving a 
CEQ conformity determination. CEQ noted in the proposed rule that 
Federal agencies should review their CEs for multiple reasons, 
including to determine if CEs remain useful, whether they should modify 
them, and to determine if circumstances have changed resulting in

[[Page 35534]]

an existing category rising the potential for significant effects.
---------------------------------------------------------------------------

    \114\ Id. at 15-18.
    \115\ Id. at 16.
---------------------------------------------------------------------------

    Multiple commenters supported this requirement, with some 
suggesting that this review be subject to notice and public comment and 
others requesting the 10-year timeframe start at the time the agency 
issues the CE. One commenter requested that the regulations instruct 
agencies to take a holistic and comprehensive look at their current CEs 
to determine if any changes are needed, while another suggested that 
the periodic reviews need to account for the latest science and design 
practices.
    CEQ declines to require agencies to provide notice and comment for 
their periodic review of CEs, but notes that where an agency decides to 
revise a CE based on the review, such revisions would require notice 
and comment under Sec.  1507.3(b), for CEs established through agency 
procedures, or Sec.  1501.4(c), for CEs developed through the 
mechanisms identified in that paragraph. CEQ declines to require 
agencies to comprehensively review their CEs, because allowing agencies 
to review their CEs on a rolling basis will provide for a more orderly 
and efficient review process and allow agencies to complete their 
review of their oldest CEs more quickly than would occur if the agency 
were to review all of its CEs at one time. CEQ declines to include 
additional requirements for the periodic review but agrees that the 
standard set forth in Sec.  1501.4(d)(4) may help inform agencies as to 
when an agency should revise or remove a CE.
    Some commenters opposed the proposed requirement to review existing 
CEs, asserting that it places an administrative burden on agencies that 
is unjustified to the extent it goes beyond how agencies currently 
administer CEs. While CEQ recognizes that this review process may be 
new for some agencies, CEQ has encouraged agencies to review CEs since 
the 2010 guidance. CEQ's experience with agencies that have undertaken 
this review is that it is a valuable process for agencies because it 
results in revised and new CEs that better align with the agencies' 
programs and experience. Such reviews are animated by the same 
principle as the longstanding practices to reexamine an analysis when 
an agency has an ongoing action, such as reevaluation and 
supplementation. A periodic analysis of existing CEs serves the same 
purpose--to ensure the underlying analysis and conclusions remain 
valid.
    One commenter requested that the final rule add ``which does not 
impact projects approved under a categorical exclusion that existed at 
the time'' to paragraph (c)(9) to clarify that review of and changes to 
CEs are forward-looking and do not affect previously approved actions. 
CEQ agrees that any review of CEs does not have implications for prior 
CE determinations and does not consider the text in the final rule to 
raise any question that a review would require an agency to reopen the 
approval process for such actions. As a result, CEQ views this addition 
to be unnecessary.
    In the final rule, CEQ adds this provision with an additional 
clause to clarify that agencies do not need to review all of their CEs 
at once and may do so on a rolling basis, but should focus on the 
oldest CEs first. CEQ adds this provision to clarify that agencies need 
not undertake a comprehensive review of all CEs but could instead break 
them up such that they review them in tranches on some periodic 
schedule but where the review of each CE occurs once every 10 years. 
Additionally, in response to comments on the interaction between Sec.  
1507.3(a) regarding the validity of existing CEs and this provision, 
CEQ clarifies that agencies should prioritize its oldest CEs first.
    Tenth, CEQ proposed to move 40 CFR 1507.3(e)(3) (2020) to paragraph 
(c)(10) without substantive change. This provision addresses the 
requirement that agencies include a process for introducing a 
supplemental EA or EIS into its formal administrative record. CEQ did 
not receive comments on this provision. In the final rule, CEQ moves 40 
CFR 1507.3(e)(3) (2020) to Sec.  1507.3(c)(10) and revises the text to 
require agencies to include processes for reevaluating and 
supplementing EAs and EISs, as appropriate. CEQ has revised the text in 
this provision to enhance clarity by referring to ``processes for'' 
rather than ``a process for introducing'' and removing the reference to 
including supplemental materials in a formal administrative record to 
enable agencies flexibility to develop procedures that work with their 
programs consistent with longstanding agency practice. Additionally, 40 
CFR 1502.9(d)(4) (2020) implicitly requires agency procedures to 
address reevaluation by encouraging agencies to document their findings 
consistent with their agency NEPA procedures. CEQ adds an explicit 
requirement in Sec.  1507.3(c)(10) in the final rule for consistency 
with Sec.  1502.9(e) and to make clear that agencies must include such 
a process in their agency procedures.
    Eleventh, CEQ proposed to move the requirement for agencies to 
explain in their NEPA procedures where interested persons can get 
information on EISs and the NEPA process from paragraph (e) of 40 CFR 
1506.6 (2020) to Sec.  1507.3(c)(11) and add a reference to EAs as 
well. CEQ did not receive comments on this provision and makes this 
change as proposed in the final rule.
    Twelfth, CEQ proposed to codify section 107(f) of NEPA, 42 U.S.C. 
4336a(f), in a new paragraph (c)(12) requiring agencies to include 
procedures, where applicable, to allow a project sponsor to prepare EAs 
and EISs consistent with Sec.  1506.5. Since not all agency actions 
involve project sponsors, CEQ proposed to include ``where applicable'' 
to qualify this requirement so that it applies only where agencies have 
actions where there is a project sponsor. The proposal included 
``consistent with Sec.  1506.5'' so that such procedures would ensure 
environmental documents prepared by project sponsors (or a contractor 
on the project sponsor's behalf) are prepared with professional and 
scientific integrity, and ensure that the agency independently 
evaluates and takes responsibility for the contents of such documents. 
The proposed rule also explained that this would ensure that agencies 
require project sponsors to execute a disclosure statement to address 
financial or other interests. In addition to procedures, agencies may 
provide project sponsors with guidance and assist in the preparation of 
the documents consistent with Sec.  1506.5(b)(1).
    CEQ received multiple comments that generally supported the 
proposed changes to allow applicants to prepare EAs and EISs, as well 
as multiple commenters who generally opposed the provision and opposed 
section 107(f) of NEPA. Some commenters who oppose the proposed changes 
recognized that it is not within CEQ's authority to modify section 
107(f) of NEPA but stated that CEQ could provide more oversight and 
guardrails for how agencies carry this out and that CEQ should provide 
more guidance on avoiding conflicts of interest. Another group of 
commenters asked CEQ to provide more specificity for what agency 
procedures should specify regarding applicant or project sponsor-
prepared EAs and EISs.
    Commenters who supported the proposal pointed to time and cost 
savings and asserted that allowing project proponents, applicants, and 
contractors more opportunities to prepare EAs and EISs will help reduce 
inaccuracies and delays. Some supportive commenters also requested that 
CEQ go further, such as by allowing

[[Page 35535]]

a project sponsor a first right of refusal to prepare an EA or EIS.
    One commenter opposed the addition of paragraph (c)(12) and the 
general allowance of project sponsors to prepare EAs and EISs. However, 
they noted that their concerns could be mitigated if there is a 
definition of ``project sponsor.'' Another commenter requested that CEQ 
add to paragraph (c)(12) a requirement for agencies to include specific 
public engagement requirements in their procedures when a project 
sponsor prepares an EA or EIS. Additionally, as discussed further in 
section II.H.3, commenters were confused about the applicability of 
this provision and Sec.  1506.5.
    In the final rule, CEQ includes Sec.  1507.3(c)(12) to address 
preparation of EAs and EISs by applicants, including project sponsors. 
As discussed in section II.J.1, CEQ is adding a definition of 
``applicant,'' which is inclusive of ``project sponsors'' to address 
confusion regarding the meaning of this term here and elsewhere in the 
regulations. CEQ also revises the ``where applicable'' language to 
``where an agency has applicants that seek its action'' to address 
concerns that the provision could be read as discretionary. As CEQ 
noted in the preamble to the proposed rule, not all agencies have 
applicants or project sponsors; therefore, such agencies need not 
include procedures for non-existent applicants. This phrasing is 
consistent with the definition of ``applicant'' in the final rule. 
Additionally, CEQ adds a sentence in the final rule to clarify that 
such procedures will not apply to applicants when they serve as joint 
lead agencies. Section 107 of NEPA allows the Federal lead agency to 
appoint a State, Tribal, or local agency as a joint lead agency and 
jointly fulfill the role of the lead agency. In such cases, the joint 
lead agency and lead agency would work together to prepare the 
document, including development of the purpose and need, identification 
of alternatives, and preparing the FONSI or ROD.
    In Sec.  1507.3(c)(12), CEQ also revises the cross reference to 
Sec.  1506.5(a) and (c). As discussed in section II.H.3, CEQ is 
modifying Sec.  1506.5 for clarity, and therefore the provisions in 
Sec.  1506.5 regarding applicant-provided information for a NEPA 
document prepared by the agency or an agency-directed contractor are 
inapplicable in this instance where the applicant or its contractor is 
preparing the EA or EIS.
    In the final rule, CEQ adds paragraphs (c)(12)(i), (ii) and (iii), 
to set out minimum requirements for such procedures. CEQ includes these 
provisions to respond to comments requesting CEQ include more 
specificity about the agency's role with respect to applicant prepared 
EAs and EIS. Paragraph (c)(12)(i) requires that agency procedures 
provide for agency review and approval of the purpose and need and 
alternatives. Agency involvement in development of these key features 
of the environmental document is critical to ensure that applicant 
prepared EISs and EAs will be appropriately scoped and include the 
reasonable alternatives as determined by the agency. Paragraph 
(c)(12)(ii) requires agencies to include process for the agency to 
independently evaluate the applicant-prepared EA or EIS; take 
responsibility for its accuracy, scope, and contents; and document the 
agency's evaluation in the document consistent with the requirements in 
Sec.  1506.5(a). CEQ adds paragraph (c)(12)(iii) to address comments 
requesting that CEQ clarify that applicants cannot prepare FONSIs or 
RODs. CEQ agrees that this is consistent with section 107(f) of NEPA 
and agrees that it is an important clarification to ensure that the 
agency's determinations and decisions are its own.
    CEQ declines to add additional requirements regarding public 
engagement in paragraph (c)(12) because the regulations require 
agencies to engage the public in the preparation of an EA and EIS, 
which is required regardless of the preparer.
    Numerous commenters expressed the view that CEQ is not fully 
implementing section 107(f) of NEPA because it is not specifically 
requiring agencies to allow project sponsors or applicants the 
opportunity to prepare documents in the absence of prescribed 
procedures. Some commenters referred to the fact that agencies have 12 
months to propose procedures to CEQ following the effective date of the 
final rule, which means it will be more than a year before agencies 
have final procedures in place and be able to implement section 107(f) 
of NEPA. One commenter also pointed to some agencies already accepting 
sponsor-prepared documents for years and having a process in place to 
facilitate doing so and asserting that those agencies should not be 
prevented from continuing to accept these documents.
    CEQ agrees that agencies have long allowed applicants to prepare 
EAs and that many agencies already have procedures in place for 
applicant-prepared documents. CEQ disagrees that this provision in the 
regulations precludes agencies from implementing applicant-prepared 
documents if they already have procedures that enable them to do so. 
Agencies are currently implementing section 107(f) of NEPA and this 
provision does not prevent them from continuing to do so. Rather, this 
provision ensures that going forward, agencies include their procedures 
for applicant prepared EAs and EISs in their NEPA procedures. Doing so 
will ensure that the procedures include the criteria set forth in this 
final rule and that the public has an opportunity to review and comment 
on the agency procedures without disrupting existing practice 
implementing 107(f) of NEPA.
    Thirteenth, CEQ proposed to move, with revisions, paragraph (d) of 
40 CFR 1507.3 (2022) to Sec.  1507.3(d)(1) and strike the provisions in 
paragraphs (d)(1) through (d)(6) of 40 CFR 1507.3 (2022), which 
recommended agency procedures identify different classes of activities 
or decisions that may not be subject to NEPA. CEQ proposed to remove 
these provisions for consistency with its revisions to Sec.  1501.1. 
See section II.C.1.
    Instead, CEQ proposed Sec.  1507.3(d) and its subparagraphs to 
provide a list of items that agencies may include in their procedures, 
as appropriate, which would include, at paragraph (d)(1), identifying 
activities or decisions that are not subject to NEPA. CEQ proposed in 
paragraph (d)(2) to allow agencies to include processes for emergency 
actions that would not result in significant environmental effects. 
Finally, CEQ proposed to move, without modification, paragraphs (f)(1) 
and (f)(2) of 40 CFR 1507.3 (2022) to paragraphs (d)(3) and (d)(4), 
respectively.
    One commenter expressed support for the proposed Sec.  1507.3(d), 
and specifically identified additional support for paragraphs (d)(1) 
and (d)(2) through (6). Another commenter requested that CEQ make the 
list of items in Sec.  1507.3(d) required rather than optional for 
inclusion in agency procedures. This commenter also opposed the 
allowance in paragraph (d)(3) regarding classified proposals, asserting 
that this language invites abuse by agencies that will classify 
proposals that should not be classified to avoid public input and 
requested that there be public comment periods for classified 
proposals.
    CEQ finalizes the list of items agencies may include in their 
procedures in Sec.  1507.3(d) as proposed. It is appropriate for this 
list of items to be optional because the items included in the list 
will not always be applicable to every agency.
    CEQ notes that the provision in (d)(2) regarding emergency actions 
is similar to CEQ's emergency process for EISs provided in Sec.  
1506.11, but relates to activities that would not require

[[Page 35536]]

preparation of an EIS. Some agencies have programs that focus on these 
types of emergency actions and may need to consider special 
arrangements for their EAs in these circumstances. These special 
arrangements could focus on the format of the documents, special 
distribution and public involvement procedures, and timing 
considerations. Some agencies have already established such processes 
in their procedures to ensure efficient NEPA compliance in an 
emergency. See, e.g., 36 CFR 220.4(b); U.S. Dep't of Homeland Sec., 
Instruction Manual #023-01-001-01, Section VI.\116\
---------------------------------------------------------------------------

    \116\ DHS, 023-01-001-01, Implementation of the National 
Environmental Policy Act (Nov. 6, 2014), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
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    Regarding classified proposals, CEQ declines to further modify 
paragraph (d)(3), which has been in place since the 1978 regulations 
and is important for agencies who handle classified information. CEQ 
notes that the provision encourages agencies to withhold only what is 
necessary for the protection of classified information and structure 
the document such that it can easily make unclassified portions 
available for public comment.
    Fourteenth, CEQ proposed to strike paragraph (e) of 40 CFR 1507.3 
(2020) because it was unnecessary and potentially confusing. CEQ makes 
this change in the final rule because this provision is redundant with 
the regulations' longstanding requirement that agencies develop agency 
NEPA procedures that CEQ has determined conform to the NEPA 
regulations. Further, its requirement that agency procedures ``comply'' 
with the CEQ regulations could be read to suggest that agencies must 
complete a NEPA review when establishing their procedures, which is 
inconsistent with paragraph (b)(3).
    Fifteenth, CEQ proposed to remove, as superfluous, the first 
sentence of paragraph (f)(3) of 40 CFR 1507.3 (2020) regarding lengthy 
periods between an agency's decision to prepare an EIS and actual 
preparation, as the regulations prescribe specific timelines for 
preparation of environmental documents. As discussed in section II.D.3, 
CEQ proposed to move the second sentence of 40 CFR 1507.3(f)(3) 
regarding supplemental notices when an agency withdraws, cancels, or 
otherwise ceases the consideration of a proposed action before 
completing an EIS to Sec.  1502.4(f) with modifications. CEQ makes 
these changes in the final rule.
    Sixteenth, CEQ proposed to remove as unnecessary paragraph (f)(4) 
of 40 CFR 1507.3 (2022) regarding combining the agency's EA process 
with its scoping process. Section 1501.5(k) clarifies that agencies can 
employ scoping at their discretion when it will improve the efficiency 
and effectiveness of EAs, including combining scoping with a comment 
period on a draft EA.
    One commenter opposed this deletion because integrating scoping 
with the EA process can be an inclusive method of soliciting input and 
save time and money during the NEPA process. CEQ agrees that 
integrating scoping with an EA process can provide efficiency benefits, 
which Sec. Sec.  1501.5(k) and 1501.9(b) address. CEQ finalizes the 
proposal to remove paragraph (f)(4) because it is redundant with those 
provisions.
    Finally, as discussed in section II.C.3, CEQ proposed to strike 
paragraph (f)(5) of 40 CFR 1507.3 (2022) and replace it with a 
provision in Sec.  1501.4(e) that is consistent with the process 
established by section 109 of NEPA, 42 U.S.C. 4336c, for adoption or 
use of another agency's CE. CEQ makes this change in the final rule.
4. Agency NEPA Program Information (Sec.  1507.4)
    CEQ proposed revisions to Sec.  1507.4, which describes the use of 
agency websites and other information technology tools to promote 
transparency and efficiency in the NEPA process. In paragraph (a), CEQ 
proposed to change ``other means'' to ``other information technology 
tools'' and to remove ``environmental'' before ``documents'' because 
``environmental documents'' is a defined term, and the intent of the 
sentence is to refer to NEPA-related information and documents more 
broadly and not only to those documents that are included in the 
definition of ``environmental document.'' CEQ proposed the same edit, 
removing ``environmental'' before ``documents,'' in paragraph (a)(1). 
CEQ also proposed in paragraph (a) to require agencies to provide on 
their websites or through other information technology tools (to 
account for new technologies) their agency NEPA procedures and a list 
of EAs and EISs that are in development and complete. Lastly, in 
paragraph (a), CEQ proposed to encourage rather than allow agencies to 
include the information listed in paragraphs (a)(1) through (a)(4) on 
agency websites or other information technology tools.
    CEQ proposed to revise paragraph (a)(2) to encourage agencies to 
post their environmental documents to their websites or other 
information technology tools. Finally, CEQ proposed edits to paragraph 
(b), which promotes interagency coordination of environmental program 
websites and shared databases, to provide agencies with additional 
flexibility and clarify that the section is not limited to the listed 
technology.
    One commenter opposed CEQ's proposed requirement for agencies to 
provide a list of EAs and EISs that are in development and complete 
because the regulations already require publication of the NOI, draft 
EIS, final EIS, and ROD; require completed EISs to be publicly 
accessible via EPA's EIS database; encourage publication of draft EAs; 
and require publication of FONSIs. Combined with CEQ's proposed 
requirements for notification in Sec.  1501.9(d)(2), the commenter 
asserted the requirement to post a list of EAs and EISs is redundant 
and adds another administrative burden on agencies.
    CEQ makes the changes as proposed, including the requirement for 
agencies to provide a list of EAs and EISs that are in development and 
complete. During the rulemaking process, CEQ heard from multiple 
members of the public that it can be challenging to identify what NEPA 
reviews are active within an agency. CEQ considers the requirement to 
maintain a website or other electronic listing of EAs and EISs to be an 
important method of transparency that provides easily accessible 
information to the public. CEQ notes that the provision does not 
require agencies to publish the documents themselves, rather, it only 
requires a list of documents that are in development or completed. 
Agencies already routinely consolidate this type of information and can 
cross-reference to other repositories, such as the Federal Register or 
EPA's EIS database, on the agency website in order to reduce or avoid 
duplication. Agencies have discretion to determine when a NEPA review 
is sufficiently in development to list it on its website, and this 
provision does not require agencies to post publicly pre-decisional or 
deliberative information, including non-public information that an 
agency is working on an environmental document.
    Regarding the proposal to encourage, rather than allow, agencies to 
include the information listed in paragraphs (a)(1) through (a)(4), one 
commenter asked CEQ to go further and make the listed items a 
requirement. CEQ declines to require agencies to include this 
information, but strongly encourages them to do so.

J. Revisions to Definitions (Part 1508)

    In Sec.  1508.1, CEQ proposed revisions to the definitions of 
``categorical exclusion,'' ``cooperating agency,''

[[Page 35537]]

``effects'' or ``impacts,'' ``environmental assessment,'' 
``environmental document,'' ``environmental impact statement,'' 
``finding of no significant impact,'' ``human environment,'' ``lead 
agency,'' ``major Federal action,'' ``mitigation,'' ``notice of 
intent,'' ``page,'' ``scope,'' and ``tiering.'' CEQ proposed to add 
definitions for ``environmental justice,'' ``environmentally preferable 
alternative,'' ``extraordinary circumstances,'' ``joint lead agency,'' 
``participating Federal agency,'' ``programmatic environmental 
document,'' and ``significant effects.''
    CEQ did not propose substantive edits to any other definitions, but 
proposed to redesignate most of the paragraphs to keep the list of 
terms in alphabetical order. CEQ invited comment on whether it should 
modify the remaining definitions or define additional terms.
    Multiple commenters requested that CEQ add other definitions or 
edit existing definitions where no changes were proposed. Commenters 
requested that CEQ define a number of additional terms including 
``unresolve conflicts,'' ``Tribal consultation,'' ``final action,'' 
``monitoring,'' ``environmental design arts,'' ``reasonably available 
for inspection,'' ``substantive comments,'' ``earliest reasonable 
time,'' and ``issues.'' One commenter requested additional modification 
to the definition of ``publish'' and ``publication'' to encourage 
agencies to inform as broad an audience as possible. CEQ declines to 
make these changes in the final rule and discusses the rationale for 
not making these changes in the Phase 2 Response to Comments as well as 
in other sections of the preamble. CEQ is adding definitions for 
several additional terms and modifying definitions contained in the 
proposed rule as explained below.
1. Applicant (Sec.  1508.1(c))
    CEQ adds a definition of ``applicant'' to Sec.  1508.1(c). CEQ 
defines this term as a non-Federal entity that seeks an action by a 
Federal agency and clarifies that this term is inclusive of project 
sponsors. The CEQ regulations have long used the term ``applicant'' as 
well as ``non-Federal entity'' and ``project sponsor.'' The recent NEPA 
amendments also use both terms interchangeably. Because applicants can 
include project sponsors, as well as non-Federal entities that are 
seeking agency action for other activities that are not ordinarily 
referred to as projects, CEQ is electing to use the term ``applicants'' 
throughout these regulations. Therefore, for consistency and clarity, 
CEQ revises the regulations to use this term consistently throughout, 
replacing references to ``non-Federal entity'' and ``project sponsor'' 
with ``applicant.''
2. Categorical Exclusion (Sec.  1508.1(e))
    CEQ proposed to modify the definition of ``categorical exclusion'' 
in proposed paragraph (d) to add a cross reference to proposed Sec.  
1501.4(c), in which CEQ proposed to establish a new way for agencies to 
establish CEs. CEQ also proposed minor grammatical edits to change 
``the agency'' to ``an agency'' and ``normally do not'' to ``normally 
does not.''
    A number of commenters expressed opposition to the existing term 
``normally'' in the definition of ``categorical exclusion,'' which CEQ 
did not propose to change, and asked that the final rule clarify the 
meaning of the term. Commenters opposed to the term ``normally'' 
asserted it makes the standard for establishing a CE insufficiently 
rigorous. Other commenters specifically asked that the final rule 
specify that ``normally'' means ``in the absence of extraordinary 
circumstances,'' and that an agency cannot establish a CE if some 
actions will have significant adverse effects but will nonetheless be 
approved under the CE.
    CEQ revises the definition of ``categorical exclusion'' as proposed 
in the final rule at Sec.  1508.1(e) because it is consistent with 
section 111(1) of NEPA, which defines a CE in part as ``a category of 
actions that a Federal agency has determined normally does not 
significantly affect the quality of the human environment.'' 42 U.S.C. 
4336e(1) (emphasis added). CEQ has long used the term ``normally'' to 
mean in the absence of extraordinary circumstances,\117\ and CEQ added 
``normally'' in the definition of ``categorical exclusion'' in the 2020 
rule for this reason.\118\ Agency-established CEs are not exemptions 
from the requirement of section 102(2)(C) of NEPA that an agency 
prepare an EIS before taking a major Federal action significantly 
affecting the environment. 42 U.S.C. 4332(2)(C). Instead, CEs are a 
mechanism for complying with this requirement for actions of a kind the 
agency has determined will not normally have significant effects with 
the extraordinary circumstances applicable to a CE serving to identify 
actions of the kind covered by the CE that could nonetheless have 
significant effects and therefore require additional analysis pursuant 
to the documentation requirement of Sec.  1501.4(b)(1) or through an EA 
or EIS. Therefore, when developing a CE to identify categories of 
actions that will not normally have significant effects, an agency must 
also provide for the consideration of extraordinary circumstances to 
identify when a specific action that falls within the category is not 
of the normal variety that the agency has already determined will not 
have significant effects and, therefore, requires further analysis.
---------------------------------------------------------------------------

    \117\ See, e.g., CEQ, CE Guidance, supra note 10, at 2 
(``Extraordinary circumstances are factors or circumstances in which 
a normally excluded action may have a significant environmental 
effect that then requires further analysis in an environmental 
assessment (EA) or an environmental impact statement (EIS).'').
    \118\ See CEQ, 2020 Final Rule, supra note 39, at 43342 (``CEQ 
proposed to revise the definition of `categorical exclusion' in 
paragraph (d) by inserting `normally' to clarify that there may be 
situations where an action may have significant effects on account 
of extraordinary circumstances.'').
---------------------------------------------------------------------------

3. Communities With Environmental Justice Concerns (Sec.  1508.1(f))
    CEQ did not propose a specific definition of ``communities with 
environmental justice concerns'' but invited comment on whether the 
final rule should define the term, and if so, how. CEQ explained in the 
proposed rule that it intended the phrase to mean communities that do 
not experience environmental justice as defined in proposed Sec.  
1508.1(k) (88 FR 49960).
    Multiple commenters recommended the final rule define ``communities 
with environmental justice concerns.'' Some commenters recommended CEQ 
define it as ``communities that do not experience environmental justice 
as described in Sec.  1508.1(k).'' Another commenter suggested the 
definition of ``environmental justice'' was ``politicized'' and 
therefore referring to Sec.  1508.1(k) would do little to add clarity. 
One commenter asserted that CEQ's intended meaning would burden 
communities with raising concerns rather than a definition with 
``objective measures of adverse health and environmental effects and 
disproportionate impacts that warrant alternatives analysis.''
    Numerous commenters requested the final rule include a specific 
definition because it would provide consistency and clarity to Federal 
agencies on how they should assess environmental justice impacts and 
how they should define communities with environmental justice concerns. 
Commenters also asserted that including a definition is important 
because the phrase is used frequently in the proposed rule. Many 
commenters also requested that CEQ provide additional guidance on how 
to identify communities with environmental justice concerns, and some 
specifically asserted that a definition will only be beneficial if 
there is additional guidance that includes

[[Page 35538]]

robust public engagement with environmental justice stakeholders. Some 
commenters provided specific language for consideration, which CEQ 
describes in the Phase 2 Response to Comments.
    Some commenters asserted that the final rule does not need a 
definition, and one commenter suggested that the regulations already 
account for such groups.
    After considering the comments, CEQ agrees that a definition would 
help provide consistency and clarity for Federal agencies and adds one 
at Sec.  1508.1(f). CEQ defines ``communities with environmental 
justice concerns'' to mean communities ``that may not experience 
environmental justice as defined . . . in Sec.  1508.1(m).'' The 
definition also indicates that agencies may use available screening 
tools, as appropriate to their activities and programs, to assist them 
in identifying these communities and includes two examples of existing 
tools that agencies could use: the Climate and Economic Justice 
Screening Tool and the EJScreen Tool.\119\ The definition also 
clarifies that agencies have flexibility to develop procedures for the 
identification of such communities in their agency NEPA procedures. CEQ 
considers the definition provided in paragraph (f) that connects the 
definition of ``communities with environmental justice concerns'' with 
the definition of ``environmental justice,'' alongside an indication 
that agencies may use available screening tools to assist them, to 
strike the right balance between providing additional guidance to 
agencies and recognizing that agencies should have flexibility to 
identify communities with environmental justice concerns in light of 
the unique circumstances associated with each action.
---------------------------------------------------------------------------

    \119\ CEQ, Explore the Map, Climate and Economic Justice 
Screening Tool, https://screeningtool.geoplatform.gov/; EPA, 
EJScreen: Environmental Justice Screening and Mapping Tool, https://www.epa.gov/ejscreen.
---------------------------------------------------------------------------

    CEQ encourages agencies to make use of all available tools and 
resources in identifying communities with environmental justice 
concerns. CEQ notes that this definition is not intended to make such 
communities self-identify; it is incumbent on the agencies to 
proactively identify such communities. While many agencies have 
experience in doing so, CEQ anticipates that agencies will develop more 
expertise over time, which is why CEQ encourages agencies to consider 
further defining their methodology for identifying communities with 
environmental justice concerns in their agency NEPA procedures. CEQ 
also may provide guidance to agencies in the future as tools and 
methodologies for identification of communities with environmental 
justice concerns develop.
4. Cooperating Agency (Sec.  1508.1(g))
    In proposed paragraph (d) of Sec.  1508.1, CEQ proposed to revise 
the definition of ``cooperating agency'' for clarity and consistency 
with the definition of ``cooperating agency'' in sections 111(2) of and 
107(a)(3) of NEPA, which provides that a lead agency may designate as a 
cooperating agency ``any Federal, State, Tribal, or local agency that 
has jurisdiction by law or special expertise with respect to any 
environmental impact involved in a proposal.'' See 42 U.S.C. 
4336a(a)(3), 4336e(2).
    One commenter requested CEQ modify the definition to be more 
inclusive of State and local governments and Tribal entities by 
allowing them to serve as cooperating agencies when there are potential 
impacts in their communities or jurisdictions, and they are ``involved 
in a proposal.'' Another commenter requested CEQ add a specific 
exclusion of non-governmental organizations or quasi-governmental 
organizations from the definition.
    CEQ declines to expand the definition of ``cooperating agency'' to 
include agencies ``involved in a proposal'' as this is overly broad. 
Instead, CEQ finalizes the definition in Sec.  1508.1(g) consistent 
with the proposal, which incorporates the language in section 107(a)(3) 
of NEPA. See 42 U.S.C. 4336(a)(3). However, CEQ encourages agencies to 
invite local governments and Tribes to participate as cooperating 
agencies where they have special expertise about a proposed action and 
its environmental effects. CEQ also declines to add the recommended 
explicit exclusion of non-governmental organizations or quasi-
governmental organizations from the definition of ``cooperating 
agency'' because the definition of ``cooperating agency'' sets forth 
the entities that are eligible to serve as cooperating agencies, and 
this does not include non-governmental organizations or quasi-
governmental organizations.
5. Effects or Impacts (Sec.  1508.1(i))
    In proposed paragraph (g), CEQ proposed to make clarifying edits to 
the definition of ``effects'' and to add and modernize examples. 
Paragraph (g)(4) of 40 CFR 1508.1 (2022) listed common types of effects 
that may arise during NEPA review. CEQ proposed to update the list to 
add ``disproportionate and adverse effects on communities with 
environmental justice concerns, whether direct, indirect, or 
cumulative'' and ``climate change-related effects.'' For climate 
change-related effects, CEQ proposed to clarify that these effects can 
include both contributions to climate change from a proposed action and 
its alternatives as well as the potential effects of climate change on 
the proposed action and its alternatives. CEQ proposed these changes to 
update the definition to include effects that have been an important 
part of NEPA analysis for more than a decade and will continue to be 
relevant, consistent with best available science and NEPA's 
requirements. Also, CEQ proposed these changes in response to comments 
received during the Phase 1 rulemaking that the definition of 
``effects'' or ``impacts'' should explicitly address environmental 
justice and climate change.\120\
---------------------------------------------------------------------------

    \120\ CEQ, Phase 1 Response to Comments, supra note 52, at 87, 
99.
---------------------------------------------------------------------------

    CEQ received a variety of comments on the proposed definition of 
``effects'' or ``impacts.'' Some commenters supported the proposed 
definition generally, and specifically supported the retention of the 
changes made in the Phase 1 rulemaking to include direct, indirect, and 
cumulative effects in the definition.
    Some commenters requested CEQ add additional examples of effects, 
including vandalism, destruction of cultural resources, and adverse 
effects to resources crucial to the exercise of Tribal Nations' 
reserved rights or the habitat such resources depend on for any part of 
their lifecycle.
    Some commenters characterized the proposed definition of 
``effects'' as an attempt to inappropriately broaden the definition, 
contravene NEPA, and invite litigation, delays, and complexity. These 
commenters primarily focused on the additions of environmental justice 
and climate change into proposed paragraph (g)(4), taking issue with 
CEQ codifying concepts that have previously only been included in 
guidance documents and Executive orders. One commenter generally 
described the proposed changes to the definition of ``effects'' as 
broadening the non-statutory definition of effects and asserted that it 
is at odds with NEPA, going beyond what the statute authorizes or 
requires. They also asserted the proposed changes have nothing to do 
with the mission of most agencies.
    CEQ adds the proposed examples in Sec.  1501.8(i)(4) of the final 
rule, and also adds ``effects on Tribal resources'' in response to 
commenters' suggestions. CEQ also revises the last sentence of the 
paragraph to substitute ``adverse'' for its

[[Page 35539]]

synonym ``detrimental'' before ``effects,'' for consistency with the 
usage of the phrase ``adverse effects'' in other provisions in the 
regulations. CEQ declines to add the other proposed examples as they 
are overly specific. CEQ notes that this paragraph is a non-exhaustive 
list of examples, and that effects vary widely depending on the nature 
and scope of an agency action. CEQ considers it irrelevant to this 
rulemaking whether environmental effects, including climate-related and 
environmental justice effects, relate to an agency's mission. The 
purpose of NEPA is for agency decision makers to consider environmental 
effects in their decision making regardless of the agency's mission or 
purpose.
    CEQ acknowledges that the term ``effects'' is not statutorily 
defined. A definition of ``effects,'' however, has been a part of CEQ's 
regulations since 1978, which included direct, indirect, and cumulative 
effects, see 40 CFR 1508.8 (2019), and which CEQ restored to the 
regulations in its Phase 1 rulemaking. Including explicit references to 
``climate change-related effects'' and ``disproportionate and adverse 
effects on communities with environmental justice concerns'' as 
examples of effects is consistent with that definition of ``effects,'' 
and the approach the CEQ regulations have taken since 1978 of 
identifying examples of categories of effects that fall within the 
regulation's definition of ``effects.'' See 40 CFR 1508.1(g)(1) (2020); 
40 CFR 1508.8 (2019). The addition of these new examples to the 
regulatory text provides further specificity consistent with the 
statutory text and do not expand the scope of the definition of 
``effects.'' For example, section 2 of NEPA, 42 U.S.C. 4321, notes that 
in enacting NEPA Congress declared a national policy, among other 
things, ``to promote efforts which will prevent or eliminate damage to 
the environment and biosphere'' (emphasis added). Section 102 of NEPA, 
for example, directs the ``Federal Government to use all practical 
means'' to ensure ``for all Americans safe, healthful, productive, and 
esthetically and culturally pleasing surroundings,'' and that 
``Congress recognizes that each person should enjoy a healthful 
environment.'' 42 U.S.C. 4331(b) and (c) (emphasis added). And as 
section 102(2)(C)(i) of NEPA also notes, an agency's NEPA analysis must 
address the ``reasonably foreseeable adverse environmental effects'' of 
the proposed action,which has long been interpreted in CEQ's 
regulations (and affirmed by courts) to include direct, indirect, and 
cumulative effects. 42 U.S.C. 4332(2)(C)(ii). As a result, expressly 
identifying climate change, effects to communities with environmental 
justice concerns, and similar considerations simply draws attention to 
various categories of effects that already merit consideration.
    A commenter recommended CEQ clarify that agencies focus cumulative 
effects analyses on ``significant'' cumulative effects to improve 
efficiency. The commenter also asked CEQ to recognize that a 
qualitative analysis is sufficient when describing potential cumulative 
effects. CEQ has determined not to include these suggestions in the 
regulatory definition because they are overly specific and prescriptive 
and notes that CEQ has issued guidance on cumulative effects that 
address these issues.
    One commenter asserted that ``effects of the proposed agency 
action'' in section 102(2)(C) of NEPA cannot be read to include effects 
that are totally unrelated to the proposed agency action and therefore 
inclusion of cumulative effects in the definition of ``effects'' is 
precatory and irrelevant to the legal sufficiency of an EIS.
    Some commenters asserted that the amendments to NEPA prohibit 
consideration of cumulative effects because they do not demonstrate a 
reasonably close causal relationship, and stated that Congress 
intentionally codified ``reasonably foreseeable'' effects rather than 
``cumulative'' or ``aggregate'' effects and urged CEQ to adopt language 
consistent with the statutory amendments.
    CEQ disagrees with the commenters' assertions. The first sentence 
of the definition of ``effects'' is clear--effects must be reasonably 
foreseeable. Direct, indirect, and cumulative effects are categories of 
reasonably foreseeable effects. Therefore, CEQ declines to make changes 
to the definition to remove ``cumulative'' from the types of effects.
    Some commenters requested that CEQ restore the definition of 
``effects'' from the 2020 rule, in particular emphasizing the 
restoration of ``reasonably close causal relationship to the proposed 
action,'' which CEQ removed in the Phase 1 rulemaking. CEQ declines to 
restore the 2020 definition for the reasons discussed in the Phase 1 
rulemaking, the Phase 1 Response to Comments, and the Phase 2 Response 
to Comments. CEQ also notes that Congress did not include this language 
in the 2023 NEPA amendments, but instead used the phrase ``reasonably 
foreseeable effects.''
    CEQ also proposed minor, non-substantive edits to paragraph (g)(3) 
regarding cumulative effects. Consistent with CEQ's proposal to ensure 
``significant'' only modify ``effects,'' CEQ proposed to revise the 
phrase to read ``actions with individually minor but collectively 
significant effects.'' A commenter on the Phase 1 rulemaking had also 
noted that the word ``actions'' should be ``effects.'' CEQ did not 
receive any comments specific to this proposed change and makes it in 
the final rule in Sec.  1508.1(i)(3).
6. Environmental Assessment (Sec.  1508.1(j))
    CEQ proposed to update the definition of ``environmental 
assessment'' in proposed paragraph (h) for consistency with sections 
106(b)(2) and 111(4) of NEPA, proposed Sec.  1501.5, and longstanding 
agency practice. See 42 U.S.C. 4336(b)(2), 4336e(4). CEQ proposed to 
strike ``prepared by a Federal agency'' and change it to ``for which a 
Federal agency is responsible'' for consistency with section 107(f) of 
NEPA and Sec.  1506.5, which allow a project sponsor (following agency 
issuance of procedures) or agency-directed contractor, respectively, to 
prepare an EA but requires that the agency take responsibility for the 
accuracy of its contents irrespective of who prepares it. See 42 U.S.C. 
4336a(f).
    To improve readability, CEQ proposed to strike ``to aid an agency's 
compliance with the Act'' and replace it with text from Sec.  1501.5 
clarifying that an agency prepares an EA when a proposed action is not 
likely to have a significant effect or the significance of the effects 
is unknown. CEQ also proposed to insert additional language to clarify 
that an EA is ``used to support an agency's'' determination of whether 
to prepare an EIS, add a parenthetical cross reference to part 1502, 
and make the cross reference to the provision on FONSIs a parenthetical 
to match. CEQ noted in the proposed rule that the proposed changes 
would not alter the intention that an EA is used to support an agency's 
determination whether to prepare an EIS (part 1502) or issue a FONSI 
(Sec.  1501.6).
    One commenter requested that the definition of ``environmental 
assessment'' reference the requirements of an EA with a mitigated FONSI 
and clarify that an agency may incorporate mitigation to reach a FONSI 
determination. CEQ revises the definition of ``environmental 
assessment'' as proposed in Sec.  1508.1(j). CEQ declines to make 
additional edits to address mitigated FONSIs because the definition 
already cross-references to Sec.  1501.6, which addresses mitigated 
FONSIs.

[[Page 35540]]

7. Environmental Document (Sec.  1508.1(k))
    CEQ proposed to add ``record of decision'' to the definition of 
``environmental document'' in proposed paragraph (i) for clarity. CEQ 
also proposed to add a ``documented categorical exclusion 
determination'' to the definition to reflect the longstanding agency 
practice of documenting some CE determinations.
    A few commenters opposed the proposed addition of a documented CE 
determination to the definition. One commenter opposed the definition 
stating that it is inconsistent with the definition of ``environmental 
document'' in section 111 of NEPA. Another commenter opposed the change 
asserting some of the regulatory requirements for environmental 
documents should only apply to EAs and EISs, and that the proposed 
definition further obscures the distinction between a CE compared to an 
EA or EIS. A third commenter requested confirmation that undocumented 
CEs are excluded from the definition and also generally opposed the 
inclusion of CEs in the definition of ``environmental document.''
    CEQ makes the changes as proposed to the definition of 
``environmental document'' in Sec.  1508.1(k). This change is 
consistent with the changes to Sec. Sec.  1501.4 and 1507.3 that 
reference CE determinations. Therefore, for clarity and efficiency, CEQ 
is incorporating documented CE determinations into the definition of 
``environmental document.'' As CEQ acknowledged in its proposed rule, 
CEQ intentionally proposed a broader definition of ``environmental 
document'' than the definition in the NEPA statute because the CEQ 
regulations have long defined this term more broadly for the 
regulation's purposes, and narrowing the definition in the regulations 
would require substantial further conforming revisions that could 
create additional uncertainty and would disrupt existing practices. In 
developing the proposed and final rule, CEQ reviewed each use of the 
term to ensure its definition is appropriate as well as consistent with 
the NEPA statute. CEQ is unclear how this definition ``obscures the 
distinction'' between CEs and EAs or EISs, and therefore declines to 
make any changes in response to this comment. Lastly, CEQ agrees with 
the commenter that this would exclude undocumented CE determinations 
but declines to remove documented CE determinations as discussed 
earlier in this section.
8. Environmental Impact Statement (Sec.  1508.1(l))
    CEQ proposed to change ``as required'' to ``that is required'' in 
the definition of ``environmental impact statement'' in proposed 
paragraph (j) for consistency with the definition of ``environmental 
impact statement'' in section 111(6) of NEPA. See 42 U.S.C. 4336e(6). 
CEQ did not receive comments on this proposed change. CEQ makes this 
change in the final rule in Sec.  1508.1(l).
9. Environmental Justice (Sec.  1508.1(m))
    CEQ proposed to add a new definition of ``environmental justice'' 
at proposed paragraph (k) to define ``environmental justice'' as the 
just treatment and meaningful involvement of all people so that they 
are fully protected from disproportionate and adverse human health and 
environmental effects and hazards, and have equitable access to a 
healthy, sustainable, and resilient environment. In defining 
``environmental justice,'' CEQ proposed to use the phrase ``cumulative 
impacts,'' rather than the phrase ``cumulative effects,'' as used 
elsewhere in the proposed regulations because the phrase ``cumulative 
impacts'' has a meaning in the context of environmental justice 
relating to the aggregate effect of multiple stressors and exposures on 
a person, community, or population. See, e.g., Environmental Protection 
Agency, Cumulative Impacts Research: Recommendations for EPA's Office 
of Research and Development (2022). CEQ explained in the proposed rule 
that it views the evolving science on cumulative impacts as 
sufficiently distinct from the general meaning of cumulative effects 
under the NEPA regulations such that using a different term could be 
helpful to agencies and the public. CEQ invited comment on this 
approach.
    Multiple commenters expressed support for the proposed definition, 
with many saying the language is clear and comprehensive and others 
welcoming the inclusion of a definition, saying it is long overdue. 
Some commenters expressed support for specific components of the 
definition, such as the inclusion of Tribal affiliation. Numerous 
commenters suggested specific revisions to the definition or asked that 
the final rule include additional elements, which CEQ discusses in the 
Phase 2 Response to Comments.
    Some commenters supported use of the phrase ``cumulative impacts'' 
in the definition and CEQ's rationale for doing so. One commenter 
asserted that ``cumulative impacts'' is a newly introduced concept and 
urged CEQ to clarify its meaning, expressing concern that it is open-
ended and could result in agencies inaccurately interpreting the term 
to call for an unnecessarily expansive historical baseline in the 
analysis that could slow or discourage development or require projects 
to mitigate historical environmental burdens that go beyond the impacts 
of a proposed project. One commenter requested that CEQ add a separate 
definition for ``cumulative impacts'' as it is used in the definition 
of ``environmental justice'' to distinguish it from ``cumulative 
effects.''
    Multiple commenters opposed the proposed definition of 
``environmental justice'' for a variety of reasons. Commenters asserted 
that it was subjective, vague, difficult to implement, an impossibly 
high standard, politically motivated, inconsistent with Sec.  
1502.16(b), unlawful and not supported by statute, vulnerable to legal 
challenges, could open the door to endless project delays, and changes 
NEPA procedural requirements to achieve substantive goals.
    In the final rule, CEQ adds a definition of ``environmental 
justice'' in Sec.  1508.1(m) consistent with the proposal. 
Consideration of environmental justice is within the scope of NEPA's 
purpose to provide for the social, economic, and other requirements of 
present and future generations and allowing for all Americans to 
participate in a wide sharing of life's amenities. See 42 U.S.C. 4331. 
NEPA also recognizes that each person should have the opportunity to 
enjoy a healthy environment. 42 U.S.C. 4331. Consideration of 
environmental justice also informs an agency's analysis of reasonably 
foreseeable effects. Agencies have decades of experience integrating 
consideration of environmental justice in their NEPA reviews and 
incorporating a definition of ``environmental justice'' into the 
regulations will provide additional clarity and consistency as agencies 
continue to analyze environmental justice in environmental documents, 
as they have for many years. The definition added to the regulations is 
consistent with longstanding agency practice evaluating potential 
effects to communities that experience disproportionate and adverse 
human health and environmental effects and ensuring meaningful 
engagement with communities affected by proposed actions. The 
definition is also consistent with the definition of ``environmental

[[Page 35541]]

justice'' in section 2(b) of E.O. 14096.\121\ CEQ declines to define 
the phrase ``cumulative impacts.'' As noted in the proposed rule, 
``cumulative impacts'' has a meaning in the context of environmental 
justice relating to the aggregate effect of multiple stressors and 
exposures on a person, community, or population. The science of 
``cumulative impacts'' is an evolving field, and CEQ has determined 
that it is premature and inappropriately limiting to establish a 
regulatory definition of the phrase at this time. CEQ will consider 
whether guidance on cumulative impacts would assist agencies conducting 
environmental reviews.
---------------------------------------------------------------------------

    \121\ See E.O. 14096, supra note 22, at 25253.
---------------------------------------------------------------------------

    Some commenters asked CEQ to provide clearer direction and guidance 
on how to apply the definition and consideration of environmental 
justice to improve consistency and clarity amongst Federal agencies. 
CEQ will consider what additional guidance may be necessary.
10. Environmentally Preferable Alternative (Sec.  1508.1(n))
    CEQ proposed to add a new definition of ``environmentally 
preferable alternative'' at Sec.  1508.1(l), a concept that has been in 
the regulations since 1978, and define it as the alternative or 
alternatives that will best promote the national environmental policy 
in section 101 of NEPA. CEQ based its proposed definition on CEQ's 
Forty Questions guidance that was issued in 1981 and has remained an 
important resource for agencies since that time.\122\
---------------------------------------------------------------------------

    \122\ CEQ, Forty Questions, supra note 5, at 6.
---------------------------------------------------------------------------

    Some commenters expressed general support for the proposed 
definition. Others expressed support and suggested changes, such as 
incorporating the phrases ``reasonable alternative'' and ``economically 
and technically feasible.'' Other commenters opposed the proposed 
definition. Multiple commenters asserted the definition conflicts with 
the mandates of section 101 of NEPA and asserted that because section 
101 is about striking a balance, the environmentally preferable 
alternative should be defined as the alternative that best strikes a 
balance. Another commenter asserted the proposed definition is at odds 
with the statutory language of NEPA arguing that agencies must only 
consider alternatives that are technically and economically feasible 
and asserting that the environmentally preferable alternative may not 
always be technically and economically feasible.
    CEQ adds the definition of ``environmentally preferable 
alternative'' in Sec.  1508.1(n) as proposed. As CEQ has clarified in 
Sec.  1502.14(f) and in the discussion in section II.D.9, agencies 
identify the environmentally preferable alternative amongst the 
alternatives considered in the EIS, which are the proposed action, no 
action, and reasonable alternatives. Therefore, the definition of 
``environmentally preferable alternative'' does not require agencies to 
consider alternatives beyond those already identified for 
consideration. CEQ disagrees that it is necessary to include text 
indicating that the environmentally preferable alternative must be a 
reasonable alternative, because agencies select the environmentally 
preferable alternative from the alternatives analyzed in the EIS, which 
include the proposed action, no action, and reasonable alternatives, 
which is defined as a range of alternatives that are technically and 
economically feasible, and meet the purpose and need for the proposed 
action. CEQ also disagrees that the environmentally preferable 
alternative should be defined as the alternative that best balances 
competing considerations. While balance is an important part of NEPA, 
identifying the environmentally preferable alternative provides 
information to decision makers and the public, and is a longstanding 
part of the NEPA process. Agencies are not required to adopt the 
environmentally preferred alternative as its final decision. 
Additionally, CEQ disagrees that the definition is at odds with section 
101 of NEPA because that section is incorporated into the definition.
11. Extraordinary Circumstances (Sec.  1508.1(o))
    CEQ proposed to add a definition of ``extraordinary circumstances'' 
in proposed paragraph (m). While the 1978 regulations explained the 
meaning of extraordinary circumstances as part of the definition of 
``categorical exclusion'' at 40 CFR 1508.4 (2019), which the 2020 rule 
moved to 40 CFR 1501.4(b) (describing how to apply extraordinary 
circumstances when considering use of a CE) and 40 CFR 1507.3(e)(2)(ii) 
(requiring agencies to establish extraordinary circumstances for CEs in 
their procedures),\123\ CEQ proposed to create a standalone definition 
to improve clarity when this term is used throughout the rule.
---------------------------------------------------------------------------

    \123\ CEQ, 2020 Final Rule, supra note 39, at 43342-43.
---------------------------------------------------------------------------

    CEQ also proposed to add several examples of extraordinary 
circumstances to help agencies and the public understand common 
situations that agencies may consider in determining whether an action 
normally covered by a CE falls outside the category of actions the 
agency has determined will not have significant effects and, therefore, 
additional analysis is required either under Sec.  1501.4(b), if the 
agency can determine that it can rely on the CE notwithstanding the 
presence of the extraordinary circumstance, or through an EA or EIS. 
The proposed examples included effects on sensitive environmental 
resources, disproportionate and adverse effects on communities with 
environmental justice concerns, effects associated with climate change, 
and effects on historic properties or cultural resources. This list of 
examples is not exclusive, and agencies continue to have the discretion 
to identify extraordinary circumstances in their NEPA implementing 
procedures, consistent with Sec.  1507.3, as well as through the new 
mechanism to establish CEs in Sec.  1501.4(c), that are specific and 
appropriate to their particular actions and CEs.
    Multiple commenters expressed general support for the proposed 
definition of ``extraordinary circumstances.'' A few commenters 
specifically supported the inclusion of the examples of extraordinary 
circumstances, including the references to climate change effects, 
effects on sensitive environmental resources, effects on communities 
with environmental justice concerns, and effects on historic properties 
and cultural resources.
    Other commenters criticized the proposed definition, asserting it 
is too broad, vague, and subjective. Some commenters suggested the 
proposed definition is contrary to the NEPA amendments allowing 
expanded use of CEs. Other commenters specifically objected to the 
examples, specifically effects on climate change and communities with 
environmental justice concerns. One commenter stated the definition 
could result in confusion because it does not provide clarity on what 
agencies must evaluate. Similarly, another commenter stated this lack 
of clarity provides too much freedom to agencies that may not properly 
assess the effects of projects for the sake of efficiency.
    CEQ adds a definition of ``extraordinary circumstances'' in Sec.  
1508.1(o) as proposed with minor changes. In the final rule, CEQ uses 
``means'' instead of ``are'' for consistency with other definitions in 
Sec.  1508.1. The final rule removes ``environmental'' from 
``significant

[[Page 35542]]

environmental effects'' because ``significant effects'' is a defined 
term. CEQ also revises the examples of extraordinary circumstances to 
use the same introductory text, ``substantial'' effects as discussed 
further in this section. The operative language included in this 
definition has been in the regulations since 1978, and agencies have 
decades of experience analyzing proposed actions for extraordinary 
circumstances. CEQ disagrees that the definition is inconsistent with 
the recent amendments to NEPA because NEPA requires agencies to conduct 
an EIS for actions that will have significant effects, and 
extraordinary circumstances are the mechanism by which an agency 
assesses whether a particular proposed action may have significant 
effects and, therefore, that reliance on a CE is inappropriate. CEQ 
disagrees that the definition is overbroad and considers it to provide 
agencies the necessary flexibility to tailor their extraordinary 
circumstances consistent with their programs and authorities. CEQ also 
disagrees that the proposed definition impedes the ability of agencies 
to use CEs or apply the provisions of NEPA regarding CEs. The 
regulations have always required agencies to consider extraordinary 
circumstances when applying a CE and providing a definition within the 
regulations helps provide clarity to agencies, applicants, and the 
public.
    Multiple commenters asserted that the undefined phrase 
``substantial effects'' used in the examples of extraordinary 
circumstances may result in confusion, delays, and increased litigation 
risk. Another commenter questioned why ``potential substantial 
effects'' is used in the examples instead of ``reasonably foreseeable'' 
and ``significant effects.'' CEQ used this different phrasing because 
the purpose of extraordinary circumstances is to screen an individual 
action, which would normally be covered by a CE, for further analysis 
to assess whether the action has reasonably foreseeable significant 
effects requiring the preparation of an EIS. While an agency could 
adopt extraordinary circumstances that directly implement the 
reasonably foreseeable significant effects standard, doing so could 
degrade the efficiency of applying CEs by requiring a more complex 
analysis in applying its extraordinary circumstances that would 
consider the context and intensity factors that govern an assessment of 
significance. CEQ notes that many agencies have long used this phrase 
in their lists of existing extraordinary circumstances and that this 
approach has resulted in an efficient process for applying CEs.
    Some commenters also questioned why the example for effects on 
communities with environmental justice concerns or effects on historic 
properties or cultural resources did not use the phrase ``substantial 
effects.'' CEQ revises the examples to use ``substantial'' effects for 
consistency with the other examples in Sec.  1508.1(o), although CEQ 
notes that agencies have flexibility to design extraordinary 
circumstances in a manner that makes sense for their programs.
12. Finding of No Significant Impact (Sec.  1508.1(q))
    In the definition of ``finding of no significant impact'' proposed 
in paragraph (o), CEQ proposed to insert ``agency's determination that 
and'' after ``presenting the'' for consistency with the definition of 
``finding of no significant impact'' in section 111(7) of NEPA, which 
defines the term to mean ``a determination by a Federal agency that a 
proposed agency action does not require the issuance of an 
environmental impact statement.'' 42 U.S.C. 4336e(7).
    One commenter suggested CEQ revise the definition to clarify that 
the proposed action will not have a significant adverse effect on any 
aspect of the human environment. CEQ revises the definition of 
``finding of no significant impact'' in Sec.  1508.1(q) as proposed, 
and CEQ declines to make additional changes to the definition. CEQ 
agrees that the purpose of a FONSI is to document the determination 
that the proposed action will not have a significant effect, which is 
specified in Sec.  1501.3(d)(2)(i), and does not consider repeating 
that proposition here necessary. Another commenter suggested the final 
rule include a definition for mitigated FONSI, which CEQ declines to 
add because the meaning of a mitigated FONSI is conveyed in Sec.  
1501.6(a).
13. Human Environment or Environment (Sec.  1508.1(r))
    CEQ proposed to clarify in proposed paragraph (p) that ``human 
environment'' and ``environment'' are synonymous in the regulations 
given that ``environment'' is the more commonly used term across the 
regulations.
    A few commenters expressed support for the use of ``human 
environment'' and ``environment'' synonymously. A couple of commenters 
asked for CEQ to define ``human environment'' and ``environment'' as 
separate terms but did not include a rationale for doing so. One 
commenter was supportive but requested that CEQ expand the definition 
to explicitly include cultural and socio-economic conditions.
    CEQ makes this change as proposed in the final rule at Sec.  
1508.1(r). CEQ declines to explicitly reference cultural and socio-
economic conditions in the definition, because the definition cross-
references the definition of ``effects,'' which notes that effects 
include ecological, aesthetic, historic, cultural, economic, social, or 
health.
    CEQ proposed a minor edit to ``human environment'' in Sec.  
1508.1(p) to remove ``of Americans'' after ``present and future 
generations.'' This minor edit improves consistency with section 101(a) 
of NEPA, which speaks generally about the impact of people's ``activity 
on the interrelations of all components of the natural environment'' 
and the need ``to create and maintain conditions under which [humans] 
and nature can exist in productive harmony.'' 42 U.S.C. 4331(a).
    One commenter opposed the removal of the phrase ``of Americans'' 
and disagreed with CEQ's characterization of the change as minor. CEQ 
disagrees with the commenter's assertion and makes this change in the 
final rule. In the 2020 rule, CEQ changed ``people'' to ``of 
Americans,'' explaining that this change was made to be consistent with 
section 101(a) of NEPA.\124\ However, CEQ has reconsidered that 
explanation, which overlooks the context in which the phrase ``present 
and future generations of Americans'' is used in section 101(a). That 
paragraph of the Act refers to Americans at the end of the last 
sentence after using the broader term ``man'' three times. ``Human 
environment'' refers broadly to the interrelationship between people 
and the environment. The phrase ``present and future generations of 
Americans'' is used in a narrower context to ``fulfill the social, 
economic, and other requirements of present and future generations of 
Americans.'' 42 U.S.C. 4331(a). CEQ notes that it considers the removal 
of the phrase ``of Americans'' in the definition of ``human 
environment'' to be consistent with CEQ's determination to retain the 
phrase in the first sentence of Sec.  1501.1(a). That sentence 
specifically describes section 101(a) of NEPA and does not define the 
undefined term ``human environment,'' which appears in NEPA section 
102(2)(C). CEQ considers it appropriate to define ``human environment'' 
in consideration of the totality of section 101, rather than solely 
based on the last phrase in section 101(a). A definition of

[[Page 35543]]

``human environment'' that is not limited by the phrase ``of 
Americans'' is also consistent with the statutory exclusion in section 
111(10)(b)(vi) of NEPA of activities or decisions with effects located 
entirely outside of the jurisdiction of the United States from the 
definition of ``major Federal action.'' This exclusion--consistent with 
decades of agency practice--requires agencies to evaluate effects that 
occur outside of U.S. jurisdiction as a component of the human 
environment because it does not limit the definition of ``effects,'' 
but rather excludes a narrow category of activities from the definition 
of ``major Federal action.'' 42 U.S.C. 4336e(10)(b)(vi).
---------------------------------------------------------------------------

    \124\ Id. at 43344-45.
---------------------------------------------------------------------------

14. Joint Lead Agency (Sec.  1508.1(s))
    CEQ proposed to add a definition for ``joint lead agency'' to mean 
``a Federal, State, Tribal, or local agency designated pursuant to 
Sec.  1501.7(c) that shares the responsibilities of the lead agency'' 
for preparing an EA or EIS. CEQ proposed the definition for consistency 
with the usage of that term in section 107(a)(1)(B) of NEPA and Sec.  
1501.7(b) and (c). See 42 U.S.C. 4336a(a)(1)(B).
    One commenter expressed that NEPA establishes two categories of 
joint lead agencies: Federal joint lead agencies and non-Federal joint 
lead agencies. The commenter requested CEQ clarify this distinction in 
the definition. CEQ declines to make the commenter's recommended 
change. CEQ reviewed the use of the term in the regulations and 
identified no circumstance where the term was used in a fashion that 
required distinguishing between Federal joint lead agencies and non-
Federal joint lead agencies. Therefore, CEQ finalizes the definition of 
``joint lead agency'' as proposed in Sec.  1508.1(s).
15. Lead Agency (Sec.  1508.1(u))
    CEQ proposed in paragraph (s) to revise the definition of ``lead 
agency'' as ``the Federal agency that proposes the agency action or is 
designated pursuant to Sec.  1501.7(c) for preparing or having primary 
responsibility.'' CEQ proposed this revision for consistency with the 
definition of ``lead agency'' in section 111(9) of NEPA and to expand 
the definition ``to also include EAs, consistent with longstanding 
practice. CEQ did not receive any comments on its proposed revisions to 
the definition of ``lead agency'' and finalizes the definition of 
``lead agency'' as proposed in Sec.  1508.1(u). See 42 U.S.C. 4336e(9).
16. Major Federal Action (Sec.  1508.1(w))
    CEQ proposed to revise the definition of ``major Federal action'' 
in proposed paragraph (u) to clarify the list of example activities or 
decisions that meet the definition, and revise the list of exclusions 
from the definition consistent with section 111(10) of NEPA. See 42 
U.S.C. 4336e(10). First, CEQ proposed to revise the introductory 
paragraph to change ``activity or decision'' to ``action that the 
agency carrying out such action determines is'' and insert 
``substantial'' before ``Federal control and responsibility'' and 
delete ``subject to the following'' to align the text with the language 
in section 111(10) of NEPA.
    Some commenters requested the final rule provide further clarity 
and specificity regarding ``substantial Federal control and 
responsibility'' contending that this phrase is ambiguous and 
confusing. Another commenter argued that Congress made a significant 
change to the definition of ``major Federal action'' in section 111(10) 
of NEPA in using the phrase ``substantial Federal control and 
responsibility'' over the action the agency is carrying out, instead of 
adopting the definition of ``major Federal action'' from the 1978 
regulations, ``actions with effects which are potentially subject to 
Federal control and responsibility'' or the 2020 regulations ``Federal 
control and responsibility.'' This commenter argued the use of 
``substantial'' by Congress further limits the definition of ``major 
Federal action'' and therefore NEPA's applicability generally. Several 
other commenters agreed with this premise and suggested the intention 
of the NEPA amendments was to narrow the application of NEPA. Other 
commenters asked CEQ to define the term ``substantial'' in the context 
of the definition.
    CEQ disagrees that ``substantial Federal control and 
responsibility'' applies in a more limited manner than ``Federal 
control and responsibility.'' Substantial modifies Federal control and 
responsibility and indicates that a large amount, but not complete, 
control and responsibility is required for an action to be a major 
Federal action. This interpretation is consistent with Supreme Court 
precedent interpreting the meaning of substantial in various statutes. 
See, e.g., Ayestas v. Davis, 584 U.S., 28, 45 (2018); Life Technologies 
Corp. v. Promega Corp., 580 U.S. 140, 145-46 (2017); Virginia v. Hicks, 
539 U.S. 113, 119-20, 122-24 (2003). CEQ interprets substantial Federal 
control and responsibility to mean the agency has a large amount of 
control and responsibility over the action the agency is carrying out 
but not complete control over the action or its effects. The phrase 
``substantial Federal control and responsibility'' could, therefore, be 
interpreted to capture a broader set of actions than the phrase in the 
absence of the word ``substantial,'' because ``Federal control and 
responsibility'' unqualified could be read to require complete control 
and responsibility. Contrary to the commenters' assertion, the phrase 
``substantial Federal control and responsibility'' does not require a 
narrower scope for the term major Federal action than the phrase 
``Federal control and responsibility.''
    CEQ notes that the phrase ``substantial Federal control and 
responsibility'' in section 111(10) applies to the actions an agency is 
carrying out. 42 U.S.C. 4336e(10)(A). In most cases, agencies exercise 
control and responsibility over the actions they carry out, unless 
those actions are non-discretionary. CEQ declines to define 
``substantial'' in the final rule but will consider whether to issue 
guidance in the future and will assist agencies in evaluating 
circumstances in which the agency carries out an action but lacks 
complete control and responsibility for it.
    CEQ revises the introductory paragraph of the definition of ``major 
Federal action'' in Sec.  1508.1(w) as proposed because the text aligns 
with the definition of ``major Federal action'' in section 111(10) of 
NEPA. 42 U.S.C. 4336e(10). The determination of whether an activity or 
decision is a major Federal action is a fact-specific analysis that 
agencies have long engaged in, and they should continue to exercise 
judgment as they evaluate the contexts in which they operate. The 
regulations provide a list of example activities and decisions in Sec.  
1508.1(w)(1) to assist agencies in making these determinations.
    Second, CEQ proposed to reorder and revise the definition to first 
list the examples of activities or decisions that may be included in 
the definition of ``major Federal action'' before the exclusions. To 
that end, CEQ proposed to move paragraph (q)(3) of 40 CFR 1508.1 (2020) 
to proposed paragraph (u)(1), and revise ``tend to fall within one of 
the following categories'' to read ``generally include.''
    Several commenters opposed the proposed list of example activities 
or decisions that meet the definition of ``major Federal action'' and 
recommended the final rule retain only the exclusions set forth in 
section 111(10) of NEPA. The commenters argued that these examples go 
beyond the text of NEPA, subvert Congressional intent, and limit an 
agency's ability to make case-by-case determinations.

[[Page 35544]]

Other commenters expressed support for the list of examples.
    CEQ considered the range of comments on the definition of ``major 
Federal action'' and determined that providing both examples of 
activities or decisions that typically meet the definition of ``major 
Federal action'' as well as exclusions from the definition strikes the 
right balance to help agencies as they make case-by-case factual 
determinations of whether an action qualifies as a major Federal action 
and for consistency with section 111(10). See 42 U.S.C. 4336e(10). To 
provide additionally clarity that this is a fact-specific, case-by-case 
determination, CEQ moves paragraph (q)(3) of 40 CFR 1508.1 (2020) to 
Sec.  1508.1(w)(1) in the final rule, revises it consistent with the 
proposal, and adds an introductory clause, ``[e]xamples of'' before 
``major Federal actions generally include'' to the beginning of the 
paragraph to make clear that this is a list of example activities and 
decisions that may meet the definition of ``major Federal action.''
    Third, CEQ proposed to strike paragraph (q)(2) of 40 CFR 1508.1 
(2020) and replace it with proposed paragraph (u)(1)(i) to include the 
granting of authorizations such as permits, licenses, and rights-of 
way. CEQ proposed to strike the examples in paragraph (q)(2) 40 CFR 
1508.1 (2020) because the proposed example addresses regulated 
activities, and the other examples are redundant to those listed in 
proposed paragraphs (u)(1)(ii) through (u)(1)(vi). CEQ did not receive 
any comments specific to this proposal. CEQ strikes paragraph (q)(2) of 
40 CFR 1508.1 (2020) in the final rule and replaces it in Sec.  
1508.1(w)(1)(i) with the language as proposed.
    Fourth, CEQ proposed to redesignate paragraphs (q)(3)(i) through 
(q)(3)(iv) of 40 CFR 1508.1 (2020) as proposed paragraphs (u)(1)(ii) 
through (u)(1)(v). CEQ did not receive any comments specific to this 
proposal. In the final rule, CEQ redesignates paragraphs (q)(3)(i) 
through (q)(3)(iv) of 40 CFR 1508.1 (2020) as Sec.  1508.1(w)(3)(i) 
through (w)(3)(iv), respectively.
    Fifth, in paragraph (u)(1)(iv), CEQ proposed to change the phrase 
``connected agency decisions'' to ``related agency decisions'' to 
clarify that the concept in this paragraph is not meant to refer to 
``connected actions'' as discussed in Sec.  1501.3. CEQ proposed this 
as a non-substantive, clarifying change to avoid any confusion with 
connected actions. CEQ did not receive specific comments on this 
proposed change and revises this provision as proposed in Sec.  
1508.1(w)(1)(iv).
    Sixth, CEQ proposed to revise paragraph (u)(1)(v) to change 
``approval of'' to ``carrying out'' specific projects to address 
projects carried out directly by a Federal agency. CEQ proposed to 
strike ``located in a defined geographic area'' from the example of 
management activities; while this is merely an example, CEQ is 
concerned it could be read as limiting. CEQ also proposed to strike the 
sentence regarding permits and address them in the example in proposed 
paragraph (u)(1)(i).
    One commenter requested removal of the term ``carrying out,'' 
asserting that CEQ has not shown that carrying out construction 
activities constitutes major Federal action. In the final rule, CEQ 
retains the example in Sec.  1501.8(w)(1)(v) and adds ``or carrying 
out'' after ``[a]pproval of'' rather than replacing it because the 
phrase ``carrying out'' is consistent with section 111(10) of NEPA, 
which includes the phrase ``the agency carrying out such action.'' 42 
U.S.C. 4336e(10)(A). CEQ also adds ``agency'' before ``projects'' to 
distinguish this example from non-Federal projects. Because this is a 
list of examples and both approving or carrying out construction 
projects can be major Federal actions, CEQ includes both in the final 
rule. For example, an agency may approve construction of a Federal 
facility and then contract out with another entity to actually carry 
out that construction.
    Seventh, CEQ proposed to add a new example in proposed paragraph 
(u)(1)(vi) to improve clarity and ensure appropriate application of 
NEPA by explaining when Federal financial assistance is a major Federal 
action. Generally, actions to provide Federal financial assistance, 
other than actions that provide only minimal Federal funding, are major 
Federal actions so long as the Federal agency has authority and 
discretion over the financial assistance in a manner that could address 
environmental effects from the activities receiving the financial 
assistance. In such circumstances, the agency has sufficient control 
and responsibility over the use of the funds or the effects of the 
action for the action providing financial assistance to constitute a 
major Federal action consistent with the definition in section 111(10) 
of NEPA. 42 U.S.C. 4336e(10)(A). This includes circumstances where the 
agency could deny the financial assistance, in whole or in part, due to 
environmental effects from the activity receiving the financial 
assistance, or could impose conditions on the financial assistance that 
could address the effects of such activity.
    Several commenters contended that CEQ's proposal to include 
financial assistance as an example of a major Federal action in 
proposed paragraph (u)(1)(vi) is inconsistent with the statutory 
definition of ``major Federal action'' in section 111(10)(B) of NEPA. 
The commenters stated that the proposed language is overly broad and 
could cover too many Federal loan or grant programs. One commenter 
asserted that this language ``could cover virtually any Federal grant 
or loan program, including ones that are not currently subject to 
NEPA.'' Another commenter asserted that financial assistance should 
never be considered a major Federal action.
    CEQ disagrees that the examples of how an agency may exercise 
``sufficient control and responsibility'' with regard to financial 
assistance to meet the statutory definition of ``major Federal action'' 
are inconsistent with the statute. The language in paragraph (u)(1)(vi) 
provides examples of where financial assistance meets the definition of 
``major Federal action'' and is not covered by the exclusion of 
``financial assistance where a Federal agency does not exercise 
sufficient control and responsibility over the subsequent use of such 
financial assistance or the effect of the action.'' 42 U.S.C. 
4336e(10)(B)(iii).
    CEQ adds the proposed examples in the final rule at Sec.  
1508.1(w)(1)(vi) with an additional clause to incorporate the phrase 
``more than a minimal amount'' into the example to avoid any confusion 
about the relationship of the example to the exclusion in paragraph 
(w)(2)(i)(A) and NEPA section 111(10)(B)(ii). CEQ also makes two 
editorial corrections to add the missing word ``to'' after ``due'' and 
repeat the subject ``authority to'' before ``impose conditions.'' 
Except in circumstances in which an agency provides minimal Federal 
funding, where an agency has substantial control and responsibility 
over a recipient's environmental effects or sufficient discretion to 
consider the environmental effects when making decisions, the agency 
must comply with NEPA. While an agency can appropriately tailor the 
scope of its NEPA analysis to the environmental effects that it can 
take into account in making its decision, the agency cannot exclude 
such actions from NEPA review altogether.
    CEQ disagrees with the assertion that the example broadens the 
applicability of NEPA to financial assistance that is excluded by 
section 111(10)(B)(ii) and Sec.  1508.1(w)(2)(iii). Rather, the example 
describes circumstances in which an agency exercises sufficient control 
or

[[Page 35545]]

responsibility over the use of financial assistance or the effect of 
the action to fall outside the exception. In evaluating whether a 
particular action qualifies as a major Federal action consistent with 
this example and the exclusion in Sec.  1508.1(w)(2)(iii), agencies 
should consider the specific circumstances and legal authorities 
involved. As with any NEPA review, where an agency determines that an 
action providing financial assistance constitutes a major Federal 
action, the agency should scope the NEPA review in light of the 
statutory and factual context presented.
    Other commenters specifically questioned the inclusion of financial 
assistance where the agency ``otherwise has sufficient control and 
responsibility over the subsequent use of the financial assistance or 
the effects of the activity for which the agency is providing the 
financial assistance'' in the example. A commenter asserted that this 
phrase's breadth and ambiguity could lead to litigation and recommended 
narrowing this flexibility clause to apply only where the agency 
``otherwise has authority to impose conditions on the receipt of the 
financial assistance to address environmental effects.''
    CEQ declines to make the commenters' proposed changes. The text the 
commenter addresses reflects the exclusion in section 111(10)(B)(iii) 
of NEPA. See 42 U.S.C. 4336e(10)(B)(iii). CEQ agrees that authority to 
impose conditions to address environmental effects, along with 
authority to deny in whole or in part assistance due to environmental 
effects, would satisfy the statutory test, and those situations are 
identified in the sentence immediately preceding the text that is the 
focus of the comment. Describing these situations, along with the 
remainder of Sec.  1508.1(w)(1)(vi), can assist agencies in evaluating 
actions providing financial assistance, in light of the relevant 
statutory authorities and factual context, to determine if such action 
falls within the exclusion in section 111(10)(B)(iii) of NEPA and Sec.  
1508.1(w)(2)(iii). In addition to reflecting the statutory exclusion, 
this clause recognizes the varying degrees of control and 
responsibility agencies have over a wide variety of financial 
assistance programs, as well as the agencies' responsibility to 
determine the proper scope of its NEPA review with regard to such 
programs.
    Eighth, CEQ proposed to replace the exclusions in paragraphs 
(q)(1)(i) through (vi) of 40 CFR 1508.1 (2020) with the exclusions from 
the definition of ``major Federal action'' codified in the definition 
in section 111(10)(B) of NEPA. See 42 U.S.C. 4336e(10)(B). CEQ proposed 
to include in proposed paragraph (u)(2)(i), (u)(2)(i)(A), and 
(u)(2)(i)(B) the exclusion of non-Federal actions with no or minimal 
funding; or with no or minimal Federal involvement where the agency 
cannot control the outcome of the project consistent with section 
111(10)(B)(i) of NEPA. CEQ proposed these exclusions to replace the 
exclusion in 40 CFR 1508.1(q)(1)(vi) (2020), which CEQ proposed to 
strike. CEQ also invited comment on whether it should add additional 
provisions to the regulations to implement the ``minimal Federal 
funding'' exclusion in proposed paragraph (u)(2)(i)(A), noting that 
agencies currently evaluate the provision of minimal Federal funding 
based on specific factual contexts. CEQ asked whether additional 
procedures, including thresholds related to the amount or proportion of 
Federal funding, could increase predictability while ensuring that 
Federal agencies do not disregard effects to vital components of the 
human environment, including the health of children and vulnerable 
populations, drinking water, communities with environmental justice 
concerns, and similar considerations.
    CEQ received some comments on the exclusion for non-Federal actions 
with no or minimal Federal involvement where the Federal agency cannot 
control the outcome of the project, which mirrors the exclusion in 
section 111(10)(B)(i)(II) of NEPA, and in response to the request for 
comment. One commenter recommended against setting a threshold, given 
the fact-specific nature of the inquiry. The commenter expressed 
concern that setting a threshold for the amount or proportion of 
Federal funding necessary for agency action to trigger NEPA would 
undermine the statute's emphasis that it apply to the ``fullest extent 
possible.'' The commenter further asserted that the 2023 NEPA 
amendments, as clarified by CEQ's proposed regulations, are sufficient 
to provide clarity on the scope of NEPA's application, and a threshold 
amount is not necessary or useful.
    Two commenters recommended that the regulations establish 
thresholds for minimal Federal funding or direct agencies to establish 
thresholds in their NEPA procedures, asserting that clear thresholds 
will improve efficiency and reduce litigation risk. Two other 
commenters supported establishing a threshold for minimum funding and 
included suggestions for what that threshold should be. A couple of 
commenters requested CEQ define ``minimum'' in the context of minimum 
funding.
    CEQ strikes 40 CFR 1508.1(q)(1)(vi) (2020) and adds this exclusion 
in the final rule as proposed at Sec.  1508.1(w)(2)(i), (w)(2)(i)(A), 
and (w)(2)(i)(B). CEQ has considered the broad range of suggestions to 
thresholds it received but has not identified a threshold that would be 
appropriate across the broad range of Federal programs or that would 
address CEQ's concern about the health of children and vulnerable 
populations, drinking water, communities with environmental justice 
concerns, and similar circumstances. CEQ also notes that there is 
limited case law as to what constitutes ``minimal Federal funding'' and 
that the case law that exists does not define a clear threshold that 
could be incorporated into the regulations. Therefore, agencies should 
continue to evaluate whether funding is ``minimal'' based on the 
specific factual context of the proposed action.
    CEQ also adds the exclusion for non-Federal actions ``with no or 
minimal Federal involvement where a Federal agency cannot control the 
outcome of the project'' in Sec.  1508.1(w)(2)(i)(B) as proposed. This 
provision reinforces the general rule that major Federal actions are 
actions carried out by an agency, and not non-Federal actions, and that 
a non-Federal action does not become a Federal action due to only 
minimal Federal involvement. Note, this exclusion does not bear on 
whether an action undertaken by a Federal agency, such as issuing a 
regulatory authorization or deciding to provide funding assistance, is 
a major Federal action, because in such circumstances the agency is 
undertaking an action itself. There are, however, circumstances where 
Federal involvement in a non-Federal action does not constitute an 
action, for example, where an agency informally provides a non-Federal 
party information that the non-Federal party considers in developing 
the non-Federal action. The provision of the information may not 
qualify as an agency action and the minimal Federal involvement would 
not result in the non-Federal action being considered a Federal action.
    Ninth, CEQ proposed to include the exclusion of funding assistance 
solely in the form of general revenue sharing funds consistent with 
section 111(10)(B)(ii) of NEPA in proposed paragraph (u)(2)(ii). See 42 
U.S.C. 4336e(10)(B)(ii). CEQ proposed this exclusion to replace the 
similar exclusion in 40 CFR 1508.1(q)(1)(v) (2020), which CEQ proposed 
to strike. CEQ did not receive substantive comments on this proposed 
revision. CEQ strikes 40 CFR 1508.1(q)(1)(v)

[[Page 35546]]

(2020) and adds this exclusion in the final rule as proposed at Sec.  
1508.1(w)(2)(ii).
    Tenth, CEQ proposed to include the exclusion of loans, loan 
guarantees, or other forms of financial assistance where a Federal 
agency does not exercise sufficient control and responsibility over the 
subsequent use of such financial assistance or the effects of the 
action, consistent with section 111(10)(B)(iii) of NEPA, in proposed 
paragraph (u)(2)(iii). See 42 U.S.C. 4336e(10)(B)(iii). CEQ did not 
receive substantive comments on this proposed revision, although as 
discussed above, CEQ did receive related comments on the example about 
financial assistance added to paragraph (w)(1)(vi). CEQ adds this 
exclusion in the final rule as proposed at Sec.  1508.1(w)(2)(iii).
    Eleventh, CEQ proposed to include the exclusion of certain business 
loan guarantees provided by the Small Business Administration, 
consistent with section 111(10)(B)(iv) of NEPA, in proposed paragraph 
(u)(2)(iv). See 42 U.S.C. 4336e(10)(B)(iv). CEQ proposed this exclusion 
to replace the similar exclusion in 40 CFR 1508.1(q)(1)(vii) (2020), 
which CEQ proposed to strike. In particular, CEQ proposed to strike the 
example in 40 CFR 1508.1(q)(1)(vii) of farm ownership and operating 
loan guarantees by the Farm Service Agency (FSA) pursuant to 7 U.S.C. 
1925 and 1941 through 1949 because CEQ considered it best left to 
agencies to identify exclusions from the definition of ``major Federal 
action'' absent specific statutory authority like those for the Small 
Business Administration loan guarantees.
    Several commenters requested that CEQ retain the explicit exclusion 
of FSA loans and loan guarantees from the definition of ``major Federal 
action.'' These commenters contended that the loan amounts are low, 
that activities funded do not require an agency permit, and that the 
agency does not have sufficient control or authority over the use of 
the funds. These commenters disagreed with CEQ's explanation that it is 
best left to agencies to identify exclusions from the definition of 
``major Federal action'' absent specific statutory authority like those 
for the Small Business Administration (SBA) loan guarantees, arguing 
that the FSA loans are clearly outside the statutory definition, and 
that CEQ did not provide sufficient justification for not retaining the 
explicit exclusion.
    CEQ strikes 40 CFR 1508.1(q)(1)(vii) (2020) and adds this exclusion 
in the final rule as proposed at Sec.  1508.1(w)(2)(iv). When Congress 
amended NEPA to provide a definition of ``major Federal action'' in 
section 111(10), it included an exclusion for one of the two loan 
guarantee programs identified in 40 CFR 1508.1(q)(1)(vii) (2020), 
excluding business loan guarantees provided by the Small Business 
Administration, but not farm ownership and operating loan guarantees by 
the FSA. 42 U.S.C. 4336e(10)(B)(iv). In light of Congress's action, CEQ 
does not consider it appropriate to retain the exclusion for FSA loan 
guarantees in the NEPA regulations. FSA, like other agencies that 
administer loan and loan guarantee programs, should evaluate specific 
actions providing loans and loan guarantees to determine if the action 
falls within the exclusion in section 111(10) of NEPA and Sec.  
1508.1(w)(2)(iii) and, if appropriate, could address the applicability 
of this exclusion to this program in its NEPA procedures.
    CEQ disagrees with the assertion that providing financial 
assistance for a non-Federal action cannot constitute a major Federal 
action. As discussed earlier, section 111(10)(B)(iii) of NEPA excludes 
financial assistance ``where a Federal agency does not exercise 
sufficient control and responsibility over the subsequent use of such 
financial assistance or the effect of the action.'' 42 U.S.C. 
4336e(10)(B)(iii). This limited exclusion is inconsistent with treating 
actions providing financial assistance for non-Federal activities as 
categorically excluded from the definition of ``major Federal action.''
    One commenter suggested that if CEQ does not retain the explicit 
exclusion for FSA loans and loan guarantees, CEQ should clearly explain 
in the final rule that it understands that FSA loans and loan 
guarantees are the types of loans and guarantees covered by proposed 
paragraph (u)(1)(iv), and that no additional procedures are necessary 
to apply proposed paragraph 1508.1(u)(1)(iv) to the FSA loans and loan 
guarantees. CEQ declines to make these statements. FSA is in the best 
position to determine whether its loans and loan guarantees meet the 
requirements for the exclusion established in Sec.  1508.1 (w)(2)(iii). 
FSA, like other agencies administering financial assistance programs, 
may determine whether specific actions providing financial assistance 
are major Federal actions or may address such programs in their NEPA 
implementing procedures.
    One commenter requested that CEQ explicitly indicate that farm 
operations funded through FSA loans or subject to loan guarantees are 
not excluded from the definition. Other commenters expressed support 
for CEQ's proposed removal of the exclusion but requested further 
guidance on when loans and loan guarantees are actions subject to 
substantial Federal control and responsibility, citing FSA and 
Department of Energy programs specifically.
    CEQ disagrees with the commenter that farm operations by non-
Federal actors are major Federal actions if they are funded by FSA 
loans or loan guarantees. Rather, the question that FSA, like other 
agencies, will need to consider is whether FSA's action to provide a 
loan or loan guarantee is a major Federal action in consideration of 
the exclusion. FSA is in the best position to determine whether an 
action or category of actions by the agency to provide loan or loan 
guarantees involve a circumstance where the agency does not exercise 
sufficient control and responsibility over the subsequent use of the 
financial assistance or the effects and, therefore are excluded.
    Finally, one commenter requested additional guidance regarding the 
exclusion of SBA loans. While CEQ incorporates the statutory exclusion 
of certain business loan guarantees provided by the Small Business 
Administration (SBA) into Sec.  1508.1(w)(2)(iv), CEQ considers it best 
left to SBA, which has expertise with the statutes it administers, to 
determine the applicability of the exclusion to the specific programs 
it administers.
    Twelfth, CEQ proposed to move, without change, the exclusions in 
paragraphs (q)(1)(iv), (q)(1)(i), and (q)(1)(ii) of 40 CFR 1508.1 
(2020) to proposed paragraphs (u)(2)(v) through (u)(2)(vii), 
respectively because section 111(10)(B)(v) through (vii) of NEPA 
codified these exclusions verbatim. See 42 U.S.C. 4336e(10)(B)(v)-
(vii). Specifically, proposed paragraph (u)(2)(v) would exclude 
bringing judicial or administrative civil or criminal enforcement 
actions. Proposed paragraph (u)(2)(vi) would exclude extraterritorial 
activities or decisions. Proposed paragraph (u)(2)(vii) would exclude 
activities or decisions that are non-discretionary.
    One commenter requested that CEQ expand the exclusion in proposed 
in paragraph (u)(2)(v) to exclude from NEPA applicability all judicial 
proceedings when an agency joins a lawsuit. CEQ declines to make this 
revision in the final rule, which incorporates the statutory text and 
is consistent with long-standing agency practice, but agrees with the 
commenter that the exclusion encompasses an agency's decision to join a 
lawsuit. In the final rule, CEQ moves, without

[[Page 35547]]

change, the exclusion for bringing judicial or administrative civil or 
criminal enforcement actions in paragraph (q)(1)(iv) of 40 CFR 1508.1 
(2020) to Sec.  1508.1(w)(2)(v).
    A few commenters requested the final rule remove proposed paragraph 
(u)(2)(vi), arguing that it impermissibly expands the scope of NEPA and 
is inconsistent with the statute. CEQ declines to make this change as 
the language in proposed paragraph (u)(2)(vi) aligns with the text of 
section 111(10)(B)(vi) of NEPA, 42 U.S.C. 4336e(10)(B)(vi). In the 
final rule, CEQ moves, without change, the exclusion for 
extraterritorial activities or decisions, which refers to activities or 
decisions with effects located entirely outside the jurisdiction of the 
United States,\125\ from paragraph (q)(1)(i) of 40 CFR 1508.1 (2020) to 
Sec.  1508.1(w)(2)(vi).\126\
---------------------------------------------------------------------------

    \125\ CEQ notes that the jurisdiction of the United States is 
not limited to the United States' land territory. ``For purposes of 
the presumption against extraterritoriality, the territorial 
jurisdiction of the United States includes its land, internal 
waters, territorial sea, the adjacent airspace, and other places 
over which the United States has sovereignty or some measure of 
legislative control.'' Restatement (Fourth) of Foreign Relations Law 
Sec.  404 cmt. d (Am. Law Inst. 2019).
    \126\ NEPA statutorily excludes from the definition of ``major 
Federal action'' ``extraterritorial activities or decisions, which 
means agency activities or decisions with effects located entirely 
outside of the jurisdiction of the United States.'' 42 U.S.C. 
4336e(10)(B)(vi). However, this exclusion does not change the scope 
of environmental effects that agencies must assess or expand the set 
of actions that are subject to NEPA review to extraterritorial 
matters that do not have effects within the jurisdiction of the 
United States.
---------------------------------------------------------------------------

    A few commenters supported the inclusion of proposed (u)(2)(ii) 
asserting that CEQ rightfully excluded non-discretionary actions from 
NEPA, as NEPA is designed to help agencies make better decisions. In 
the final rule, CEQ moves, without change, the exclusion for non-
discretionary activities or decisions in paragraph (q)(1)(ii) of 40 CFR 
1508.1 (2020) to Sec.  1508.1(w)(2)(vii). As discussed in section 
II.C.2 addressing Sec.  1501.3, some activities or decisions may be 
partially, but not entirely, non-discretionary, and while such actions 
may constitute major Federal actions under this definition, the agency 
may appropriately exclude the non-discretionary aspects of its decision 
from the scope of its NEPA analysis.
    Thirteenth, CEQ proposed to move the exclusion regarding non-final 
agency actions from 40 CFR 1508.1(q)(1)(iii) to Sec.  
1508.1(u)(2)(viii) and make changes for consistency with section 
106(a)(1) of NEPA, 42 U.S.C. 4336(a)(1). CEQ proposed this revision for 
consistency with longstanding case law excluding non-final agency 
actions from the definition of ``major Federal action.'' Therefore, CEQ 
proposed to include the finality of an action as a threshold 
consideration as well as an exclusion from the definition of ``major 
Federal action.'' Upon further consideration, CEQ considers finality to 
be adequately addressed as a threshold consideration in Sec.  1501.3 
and concludes that both the existing regulatory text and the proposed 
revision are confusing. Therefore, CEQ strikes 40 CFR 1508.1(q)(1)(iii) 
(2020) in the final rule and does not add proposed paragraph 
(u)(2)(viii). CEQ does not intend this deletion to have any substantive 
effect because Sec.  1501.3 provides that NEPA does not apply where a 
proposed activity or decision is not a final agency action.
    Finally, CEQ proposed a new exclusion in paragraph (u)(2)(ix) for 
activities or decisions for projects approved by a Tribal Nation that 
occur on or involve land held in trust or restricted status when the 
activities involve no Federal funding or other Federal involvement. CEQ 
proposed this exclusion in recognition of the unique circumstances 
facing Tribal Nations due to the United States' holding land in trust 
for them or the Tribal Nation holding land in restricted status. CEQ 
proposed to clarify that activities or decisions for projects approved 
by a Tribal Nation on trust lands are not major Federal actions where 
such activities do not involve Federal funding or other Federal 
involvement. CEQ proposed this exclusion because Tribal leaders raised 
this issue during consultations that CEQ held on its NEPA regulations 
and voiced concerns that the NEPA process placed Tribal Nations in a 
disadvantageous position relative to State and local governments 
because of the United States' ownership interest in Tribal lands.
    A few commenters argued that the final rule should not include this 
exclusion because it was not included in the recent amendments to NEPA. 
Numerous other commenters supported the exclusion, and a large portion 
of those commenters asked that the final rule expand the exclusion to 
include additional actions, activities, or lands. One commenter asked 
CEQ to expand the provision to exclude all Tribal development from the 
definition of ``major Federal action.'' Another commenter recommended 
that the terminology in proposed paragraph (u)(ix) ``when no such 
activities or decisions involve no Federal funding'' be revised to 
match the language in paragraph (2)(i)(A) which states ``[w]ith no or 
minimal Federal funding.''
    CEQ adds the exclusion in the final rule at Sec.  
1508.1(w)(2)(viii), but adds ``or minimal'' before ``involvement'' for 
consistency with section 111 of NEPA, 42 U.S.C. 4336e(10)(B). CEQ 
declines to make the exclusion broader than this because it considers 
the exclusion to strike the right balance in recognizing the unique 
circumstances facing Tribal Nations and carrying out the purposes of 
NEPA. CEQ notes that categories of activities on trust lands that 
typically will not constitute major Federal actions include the 
transfer of existing operation and maintenance activities of Federal 
facilities to Tribal groups, water user organizations, or other 
entities; human resources programs such as social services, education 
services, employment assistance, Tribal operations, law enforcement, 
and credit and financing activities not related to development; self-
governance compacts for Bureau of Indian Affairs programs; service line 
agreements for an individual residence, building, or well from an 
existing facility where installation will involve no clearance of 
vegetation from the right-of-way other than for placement of poles, 
signs (including highway signs), or buried power/cable lines; and 
approvals of Tribal regulations or other documents promulgated in 
exercise of Tribal sovereignty, such as Tribal Energy Resource 
Agreements, certification of a Tribal Energy Development Organization, 
Helping Expedite and Advance Responsible Tribal Homeownership Act 
Tribal regulations, Indian Trust Asset Reform Act Tribal regulations 
and trust asset management plans, and Tribal liquor control ordinances.
    One commenter asked CEQ to clarify if the proposed exclusion would 
extend to activities or projects that are approved by Tribal Nations 
and focused entirely on managing, accessing, or protecting resources or 
sites on Federal land that is not held in trust but to which the Tribe 
has reserved rights. CEQ declines to make this change. Because of the 
diversity of statutory, treaty, and factual considerations that can be 
involved, determining whether such circumstances involve a major 
Federal action is appropriately left to the administering agency.
    One commenter requested the proposed provision be expanded to 
include any grant funding awarded to a Tribe. CEQ declines to make this 
change as section 111(10) of NEPA sets the standard for when actions to 
provide financial assistance, including grants, constitute a major 
Federal action. See 42 U.S.C. 4336e(10).

[[Page 35548]]

    Other commenters requested the proposed exclusion be expanded to 
include certain contracts, cooperative agreements, and similar funding 
vehicles authorizing the transfer of Federal funding to a Tribe for 
carrying out Federal programs. CEQ declines to make this change due to 
the complexity and numerosity of these arrangements but notes that the 
agencies that administer these programs could consider whether to 
include provisions addressing these programs in their NEPA procedures.
    One commenter argued the proposed exclusion is impermissibly 
narrow, and the final rule should exclude entire categories of actions 
in the rule text. CEQ declines to make this change as agencies are in a 
better position to consider the legal and factual circumstances for 
their actions either on a case-by-case basis or through their agency 
NEPA procedures.
    Several commenters asked for clarification of the term ``other 
Federal involvement.'' One commenter suggested defining it as any 
proposed Federal permits or other Federal approvals. Other commenters 
suggested ``other Federal involvement'' be defined as any proposed 
Federal permits or other Federal approvals on Tribal lands or ceded 
lands. CEQ declines to further define the term as agencies 
administering programs are best situated to consider the factual and 
legal contexts in which they operate to determine whether there is 
other Federal involvement that would make application of this exclusion 
inappropriate.
17. Mitigation (Sec.  1508.1(y))
    CEQ proposed three edits to the definition of ``mitigation'' in 
proposed paragraph (w). First, CEQ proposed to change ``nexus'' to the 
more commonly used word ``connection'' to describe the relationship 
between a proposed action or alternatives and any associated 
environmental effects. CEQ did not receive comments specific to this 
proposed change and makes this revision in the final rule at Sec.  
1508.1(y).
    Second, CEQ proposed to delete the sentence that NEPA ``does not 
mandate the form or adoption of any mitigation'' because this sentence 
was unnecessary and could mislead readers because it does not 
acknowledge that agencies may use other authorities to require 
mitigation or may incorporate mitigation in mitigated FONSIs (Sec.  
1501.6) and RODs (Sec.  1505.2).
    CEQ received comments that both supported and opposed the removal 
of this language from the definition of ``mitigation.'' Supportive 
commenters agreed with the approach CEQ proposed in the definition 
because it is consistent with established mitigation practices and 
because they were generally supportive regarding the prioritization 
listed. Opponents generally questioned the effect of this removal, 
suggesting it contradicts the Supreme Court's holding in Robertson v. 
Methow Valley Citizens Council that NEPA does not require agencies to 
mitigate adverse effects. CEQ disagrees with the commenters' assertions 
regarding Methow Valley, as discussed further in section II.G.2 and the 
Phase 2 Response to Comments. CEQ removes this language from the final 
rule consistent with the proposal.
    Third, CEQ proposed to add the clause ``in general order of 
priority'' to the sentence, ``Mitigation includes'' which introduces 
the list of mitigation types. CEQ proposed this change to clarify that 
the types of mitigation provided in proposed paragraphs (u)(1) though 
(u)(5) are listed in general order of priority, consistent with the 
familiar ``mitigation hierarchy.'' \127\ This list was prioritized in 
the 1978 regulations with avoidance coming before other types of 
mitigation and the proposed addition highlights that intent, which is 
consistent with longstanding agency practice.\128\
---------------------------------------------------------------------------

    \127\ See e.g., U.S. Dep't of the Interior, A Strategy for 
Improving the Mitigation Policies and Practices of the Department of 
the Interior (Apr. 2014), https://www.doi.gov/sites/doi.gov/files/migrated/news/upload/Mitigation-Report-to-the-Secretary_FINAL_04_08_14.pdf at 2-3 (discussing the development of a 
``mitigation hierarchy''--which starts with avoidance--in the 
implementation of NEPA and the Clean Water Act); Bureau of Land 
Mgmt., H-1794-1, Mitigation Handbook (P) (Sept. 22, 2021), https://www.blm.gov/sites/default/files/docs/2021-10/IM2021-046_att2.pdf at 
2-1 (citing CEQ regulations and noting that the ``five aspects of 
mitigation (avoid, minimize, rectify, reduce/eliminate, compensate) 
are referred to as the mitigation hierarchy because they are 
generally applied in a hierarchical manner''); U.S. Env't Prot. 
Agency & U.S. Dep't of Def., Memorandums of Agreement (MOA); Clean 
Water Act Section 404(b)(1) Guidelines; Correction, 55 FR 9210, 9211 
(Mar. 12, 1990) (noting that under section 404 of the Clean Water 
Act, the Army Corps of Engineers evaluates potential mitigation 
efforts sequentially, starting with avoidance, minimization, and 
then compensation).
    \128\ See, e.g., 10 CFR 900.3 (defining a regional mitigation 
approach under NEPA as ``an approach that applies the mitigation 
hierarchy (first seeking to avoid, then minimize impacts, then, when 
necessary, compensate for residual impacts)''); Presidential 
Memorandum, Mitigating Impacts on Natural Resources From Development 
and Encouraging Related Private Investment, 80 FR 68743, 68745 (Nov. 
6, 2015) (addressing five agencies and noting that, ``[a]s a 
practical matter, [mitigation is] captured in the terms avoidance, 
minimization, and compensation. These three actions are generally 
applied sequentially . . . .''); Fed. Highway Admin., NEPA and 
Transportation Decisionmaking: Questions and Answers Regarding the 
Consideration of Indirect and Cumulative Impacts in the NEPA 
Process, https://www.environment.fhwa.dot.gov/nepa/QAimpact.aspx 
(describing the importance of ``sequencing,'' which refers to the 
process of prioritizing avoidance and minimization of effects over 
replacement or compensation for NEPA mitigation efforts).
---------------------------------------------------------------------------

    Some commenters supported the added language clarifying the general 
order of priority for mitigation. Supportive commenters stated this 
language is consistent with established mitigation practices and 
asserted that it will encourage agencies to avoid adverse effects 
rather than try to rectify or compensate for them after they have 
occurred. Other commenters opposed the added language, stating that 
agencies may not in all cases have authority to avoid adverse effects, 
and that providing a rigid prioritization fails to guide agencies to 
consider the full range of mitigation opportunities.
    CEQ adds the clause ``in general order of priority'' to the 
definition in the final rule. CEQ uses the qualifier ``in general'' to 
provide flexibility and acknowledge that such prioritization will not 
apply to every situation. Further, the language does not prohibit 
agencies from applying the elements of the mitigation hierarchy out of 
order when they determine it is appropriate to do so, and CEQ 
encourages agencies to consider the full range of mitigation 
opportunities before deciding on an appropriate mitigation approach.
    Some commenters asserted that CEQ has ``concealed'' its 
prioritization by placing it in the definitions section of the 
regulations. CEQ disagrees that placing this language in the 
definitions conceals it and CEQ notes that the definitions are 
essential elements of the NEPA regulations. Further, the definition of 
``mitigation,'' including discussion of the categories of mitigation, 
has been in the regulations since 1978. Therefore, this is a logical 
place in the regulations for agencies or the public to look for text 
addressing the categories of mitigation.
    Some commenters provided specific feedback on compensatory 
mitigation, including some that expressed concern that it can be 
ineffective. One commenter asserted that some agencies are prohibited 
from requiring compensatory mitigation. Another commenter requested CEQ 
clarify that agencies may rely on third-party mitigation or restoration 
providers to carry out compensatory mitigation.
    CEQ declines to make additional edits to the definition of 
``mitigation.'' Agencies must identify the authority for any mitigation 
that they rely on in their analysis, and agencies should not rely on 
mitigation absent the authority to ensure that the mitigation is 
performed. Because NEPA requires agencies to

[[Page 35549]]

consider mitigation, not implement it, CEQ defers to agencies regarding 
the appropriate use of compensatory mitigation, third-party mitigation, 
or restoration providers.
    One commenter requested that CEQ establish a preference for 
mitigation that is practicable, effective, and as minimally disruptive 
to a proposed project as possible. CEQ agrees that mitigation measures 
should be practicable and effective, but considers these requirements 
to be clear from the regulations as a whole and do not need to be 
reiterated in the definition.
    Finally, CEQ makes two additional clarifying edits. First, CEQ adds 
``adverse'' to modify ``effects'' in each instance it is used in the 
definition of ``mitigation'' to clarify that mitigation addresses 
adverse effects, not beneficial effects, and for consistency with the 
definition of ``significant effects,'' which is defined as adverse 
effects. Second, CEQ changes ``effects'' to ``the adverse effect'' in 
paragraph (y)(2) for consistency with paragraphs (y)(1) and (y)(3) 
through (y)(5), which all use the singular of effect.
18. Notice of Intent (Sec.  1508.1(aa))
    CEQ proposed to modify the definition of ``notice of intent'' to 
include EAs, as applicable. CEQ proposed this change for consistency 
with Sec.  1501.5(j), which provides that agencies may issue an NOI for 
an EA where it is appropriate to improve efficiency and effectiveness, 
and Sec.  1501.10(b)(3)(iii), which sets forth one of the three 
potential starting points from which deadlines are measured for EAs 
consistent with section 107(g)(1)(B)(iii) of NEPA, 42 U.S.C. 
4336a(g)(1)(B)(iii).
    One commenter recommended the final rule clarify whether the 
addition of EA to the proposed definition requires an NOI for EAs, and 
if so, noted that this would be a new requirement. Another commenter 
similarly stated that including an EA in the definition will cause 
confusion over whether an NOI is required for an EA, and asserted that 
it clearly is not.
    CEQ adds ``environmental assessment'' to the definition of ``notice 
of intent'' for consistency with Sec. Sec.  1501.5(j) and 
1501.10(b)(3), but moves the qualifier ``as applicable'' to precede 
``environmental assessment'' to make clear that the regulations do not 
require agencies to issue an NOI for an EA, but provide them the 
discretion to do so.
19. Page (Sec.  1508.1(bb))
    CEQ proposed to modify the definition of ``page'' for consistency 
with section 107(e) of NEPA, 42 U.S.C. 4336a(e), to exclude citations 
from the definition of ``page'' and therefore the page limits for EISs 
and EAs. To facilitate better NEPA documents, CEQ proposed to retain 
the exclusions for maps, diagrams, graphs, tables, and other means of 
graphically displaying quantitative or geospatial information from the 
definition of ``page.'' While agencies could move these visual 
representations of information to appendices, which could come at the 
end of an EIS or the end of EIS chapters, CEQ expressed concern that 
this will make the documents less understandable and useful to decision 
makers and the public. Further, such graphical displays themselves 
could be considered appendices consistent with the ordinary definition 
of appendix as ``supplementary material usually attached at the end of 
a piece of writing.'' \129\
---------------------------------------------------------------------------

    \129\ See Appendix, Merriam-Webster, https://www.merriam-webster.com/dictionary/appendix.
---------------------------------------------------------------------------

    Multiple commenters supported the proposed definition of ``page,'' 
specifically asserting that the listed exclusions will help agencies 
integrate those types of information into the body of an EA or EIS 
without affecting the document's page limit and asserting that 
inclusion of these elements in the body of an EA or EIS provide a more 
readable and accessible document. Conversely, several commenters 
opposed the exclusion of certain elements from the definition of 
``page,'' except for citations and appendices as provided for in 
section 107(e) of NEPA. These commenters assert that the proposed 
exclusion of other items--maps, diagrams, graphs, and tables--
circumvents Congress' intent to mandate strict page limits, and that 
these items should be included in the definition of ``page'' and be 
subject to the page limit. They also asserted that the exclusion of 
these elements from the page count results in environmental documents 
that are longer, more complex, and more difficult for the public and 
decision makers to understand.
    NEPA does not define the term ``page,'' but rather provides, in 
section 107(e), that each type of environmental document ``shall not 
exceed [the specified number of] pages, not including any citations or 
appendices.'' 42 U.S.C. 4336a(e). When Congress enacted this language 
in 2023, it had before it the CEQ regulations, which define ``page'' as 
excluding ``explanatory maps, diagrams, graphs, tables, and other means 
of graphically displaying quantitative or geospatial information.'' Had 
Congress intended to eliminate these regulatory exclusions from the 
definition of ``page,'' it could have done so by providing a contrary 
definition of ``page'' in section 111 of NEPA, 42 U.S.C. 4336e. 
Instead, Congress chose to leave the term ``page'' undefined, therefore 
leaving CEQ's definition undisturbed, while separately specifying that 
the page limits of section 107(e) would exclude two additional elements 
that were not specifically set forth in the 2020 regulatory 
definition--citations and appendices. See 42 U.S.C. 4336a(e). 
Therefore, CEQ's continued use of a regulatory definition based on the 
one promulgated in 2020 does not circumvent, but rather complements, 
the statutory exclusion for citations and appendices.
    CEQ disagrees that the proposed definition of ``page'' contradicts 
section 107(e) of NEPA or will make more documents more complex and 
difficult to understand. Rather, CEQ considers the flexibility to 
include additional visual elements in environmental documents will 
reduce the complexity of environmental documents by making the content 
easier to understand for the public and decision makers and facilitate 
the delivery of clearer and more useful documents. Agencies should 
limit the visual elements in the body of the document to those that 
enhance comprehensibility and place additional information in 
appendices, in keeping with the general principles CEQ has set forth 
regarding clear and concise writing in NEPA documents.
20. Participating Federal Agency (Sec.  1508.1(dd))
    CEQ proposed to add a definition of ``participating Federal 
agency'' to proposed paragraph (bb) and define it to mean ``a Federal 
agency participating in an environmental review or authorization of an 
action'' consistent with the definition of the same term in section 
111(8) of NEPA. 42 U.S.C. 4336e(8). CEQ did not receive any substantive 
comments on the definition of ``participating Federal agency'' and 
finalizes it in Sec.  1508.1(dd) as proposed.
21. Programmatic Environmental Document (Sec.  1508.1(ee))
    CEQ proposed to add a definition of ``programmatic environmental 
document'' to proposed paragraph (cc) and define it consistent with the 
definition of the same term in section 111(11) of NEPA, 42 U.S.C. 
4336e(11). One commenter asserted that ``programmatic'' is not well 
defined in the proposed rule, stating that neither Sec.  1501.11 or the 
proposed definition of ``programmatic environmental

[[Page 35550]]

document'' provide a clear way to distinguish between programmatic and 
non-programmatic analyses. The commenter described that the essential 
characteristic of a programmatic document includes some aspect of the 
decision that is deferred.
    CEQ adds a definition of ``programmatic environmental document'' at 
Sec.  1508.1(ee) consistent with the proposal and declines to modify it 
as the commenter suggests because the uses of programmatic 
environmental documents are addressed in Sec.  1501.11, as discussed in 
section II.C.10 and in the Phase 2 Response to Comments.
22. Reasonable Alternatives (Sec.  1508.1(hh))
    CEQ did not propose revisions to the definition of ``reasonable 
alternatives'' but received comments on the existing definition. 
Commenters requested guidance on the meaning of ``technically and 
economically feasible,'' and one commenter requested the regulations 
direct agencies to consult with project sponsors to determine economic 
and technical feasibility. Some commenters requested that CEQ use the 
Forty Questions guidance as a starting point for additional clarity on 
technical and economic feasibility, specifically referencing the 
description that technical and economic feasibility must be based on 
common sense rather than a project proponent's preferences.
    One commenter requested guidance on how to identify and evaluate 
reasonable alternatives and include clear criteria and examples for 
defining and selecting reasonable alternatives, such as feasibility, 
cost, effectiveness, and public acceptability. One commenter asserted 
that the regulations should not define ``reasonable alternatives'' as a 
``reasonable range of alternatives'' because the language ``reasonable 
range'' suggests that agencies do not have to consider all reasonable 
alternatives. The commenter asserted that Federal courts have long held 
that NEPA requires agencies to consider all reasonable alternatives, 
and that an agency's failure to consider a reasonable alternative is 
fatal to an agency's NEPA analysis. The commenter further expressed 
that ``reasonable range of alternatives'' is ambiguous.
    CEQ does not make revisions to the definition of ``reasonable 
alternatives'' in Sec.  1508.1(hh). CEQ will consider whether to issue 
additional guidance but notes that agencies have long used the Forty 
Questions to assist them in identifying alternatives. With respect to 
the phrase ``reasonable range,'' CEQ disagrees that agencies must 
consider ``all'' reasonable alternatives or that the case law requires 
this. In some circumstances, there could be a limitless number of 
reasonable alternatives to a proposed action, with each alternative 
including slight changes to the action. NEPA does not require agencies 
to evaluate all such alternatives, but rather, a reasonable range of 
alternatives to inform decision makers and the public. Agencies must 
consider a reasonable range of alternatives that facilitates the 
comparison of effects and helps inform the decision maker and the 
public. Further, the regulations have long provided that agencies 
should discuss alternatives that they dismiss from detailed analysis 
and explain their rationale.
22. Reasonably Foreseeable (Sec.  1508.1(ii))
    CEQ did not propose to revise the definition of ``reasonably 
foreseeable'' but received comments on the existing definition. A few 
commenters described the definition as vague, subject to manipulation, 
and inconsistent with case law and Congressional intent. Some 
commenters suggested edits to the definition, such as adding that an 
effect is ``reasonably foreseeable'' when an agency can conclude with a 
high degree of confidence that the effect is more likely than not to 
occur. Some commenters asked for more clarity on how certain industries 
might meet the reasonably foreseeable standard, or suggested that what 
constitutes reasonably foreseeable, or a person of ordinary prudence, 
is subjective. Relatedly, another commenter stated that agency decision 
makers have access to knowledge, skills, resources, and statutory 
duties not applicable to a person of ordinary prudence. The commenter 
recommended CEQ replace ``person of ordinary prudence'' with ``prudent 
agency decision maker.''
    CEQ declines to make change to the definition of ``reasonably 
foreseeable'' and finalizes it in Sec.  1508.1(ii) as proposed. 
Regarding additional qualifiers or concerns that the definition is 
subjective, CEQ declines additional changes because the application of 
reasonably foreseeable is influenced by the context of the proposed 
action. Inherent in the application of reasonably foreseeable is the 
concept that Federal agencies are not required to ``foresee the 
unforeseeable'' or engage in speculative analysis. Agencies must 
forecast to the extent they can do so either quantitatively or 
qualitatively within a reasonable range. Further, the term ``reasonably 
foreseeable'' is consistent with the ordinary person standard--that is, 
what a person of ordinary prudence would consider in reaching a 
decision. CEQ is unaware of any practical challenges or confusion that 
has arisen from connecting this definition to the ordinary person, or 
circumstances where an agency has excluded analysis of an effect that 
the agency views as reasonably foreseeable because an ordinary person 
would not. Changing the regulatory text could create uncertainty as 
agencies and courts consider what, if any, implications the change 
would have, and CEQ considers creating that uncertainty unnecessary.
23. Scope (Sec.  1508.1(kk))
    CEQ proposed to expand the definition of ``scope'' to include EAs 
and revise the definition to include both the range and breadth of the 
actions, alternatives, and effects to be considered in an EIS or EA, 
consistent with CEQ's proposal to relocate the discussion of scope in 
Sec.  1501.3(b). CEQ also proposed to strike the last sentence 
regarding tiering because it was not definitional language and was 
unnecessary because this concept is more addressed in Sec.  1501.11.
    One commenter expressed support for the proposed definition of 
``scope,'' asserting it strengthens EAs and EISs. CEQ revises the 
definition of ``scope'' in Sec.  1501.8(kk) as proposed. As discussed 
further in section II.C.2, agencies have long examined the scope of 
their actions to determine what alternatives and effects they must 
analyze. This is a fact-specific analysis that agencies undertake 
informed by their statutory authority and control and responsibility 
over the activity. Other comments regarding scope are further discussed 
in section II.C.2 and the Phase 2 Response to Comments.
24. Significant Effects (Sec.  1508.1(mm))
    CEQ proposed to add a definition for ``significant effects'' to 
define those effects that are central to determining the appropriate 
level of review in the NEPA process. CEQ proposed the definition to 
align with the restoration of the context and intensity factors for 
determining significance in Sec.  1501.3(d). CEQ proposed to define 
``significant effects'' as adverse effects identified by an agency as 
significant, based on the criteria set forth in Sec.  1501.3(d), to 
clarify that beneficial effects are not significant effects as the 
phrase is used in NEPA and, therefore, do not require an agency to 
prepare an EIS. CEQ proposed this as an alternative approach to that 
taken by the proposal in Sec.  1501.3(d)(2)(i) where an action ``does 
not'' require an EIS when it would result only in significant

[[Page 35551]]

beneficial effects and invited comment on which approach is preferred.
    One commenter supported a standalone definition of ``significant 
effects'' but expressed concern that only including adverse effects 
could create confusion over how agencies assess which effects are truly 
beneficial and from whose perspective. Other commenters asserted that 
the limitation of significant effects to adverse effects, in 
conjunction with proposed Sec.  1501.3(d)(2)(i) to only require an EIS 
for significant adverse effects, is unlawful and contrary to NEPA's 
policy. These commenters asserted that NEPA requires an environmental 
review if an action's effects are significant, regardless of whether 
those effects are exclusively beneficial, and requested that the final 
rule remove ``adverse'' from the definition. A few commenters supported 
the proposed definition for varying reasons, including because it is 
straightforward and because it will help encourage streamlined 
processes by reducing the need for EISs.
    Regarding CEQ's request for comment on the preferred approach--
proposed Sec.  1501.3(d)(2)(i) or proposed Sec.  1508.1(kk)--one 
commenter recommended the final rule include both provisions because 
the definition serves to strengthen the concept that NEPA analyses 
should focus on actions with adverse effects. Another commenter 
preferred proposed Sec.  1501.3(d)(2)(i), asserting it provides 
stronger guidance for agencies.
    CEQ adds the definition of ``significant effects'' as proposed in 
Sec.  1508.1(mm), and CEQ revises Sec.  1501.3(d) for greater clarity 
on this approach as discussed in section II.C.2. This approach means 
that an agency does not need to prepare an EIS if a proposed action's 
effects are exclusively beneficial. However, irrespective of the level 
of NEPA review, agencies still need to analyze both adverse and 
beneficial effects in NEPA documents if they are reasonably 
foreseeable.
25. Tiering (Sec.  1508.1(oo))
    CEQ proposed to revise the definition of ``tiering'' to cross 
reference the process as set forth in Sec.  1501.11. CEQ proposed this 
revision to avoid any potential inconsistencies between the definition 
and the provisions of Sec.  1501.11. CEQ did not receive any comments 
on the proposed definition of ``tiering'' and revises it as proposed in 
Sec.  1508.1(oo). Other comments regarding the application of tiering 
are discussed in section II.C.10 and the Phase 2 Response to Comments.

III. Rulemaking Analyses and Notices

A. Executive Order 12866, Regulatory Planning and Review

    E.O. 12866, as supplemented and affirmed by E.O. 13563 and amended 
by E.O. 14094, provides that the Office of Information and Regulatory 
Affairs (OIRA) will review all significant rules.\130\ This final rule 
is a significant regulatory action under section 3(f)(1) of E.O. 12866, 
as amended by E.O. 14094, that CEQ submitted to OIRA for review. The 
changes in the final rule will improve the CEQ regulations to benefit 
agencies and the public. Furthermore, an effective NEPA process can 
save time and reduce overall project costs by providing a clear process 
for evaluating alternatives and effects, coordinating agencies and 
relevant stakeholders including the public, and identifying and 
avoiding problems--including potential significant effects--that may 
occur in later stages of project development.\131\ Additionally, if 
agencies choose to consider additional alternatives and conduct clearer 
or more robust analyses, such analyses will improve societal outcomes 
by facilitating improved agency decision making on the whole, even if 
the NEPA statute and regulations do not dictate the outcome of any 
specific decision. Because individual cases will vary, the magnitude of 
potential costs and benefits resulting from these changes are difficult 
to anticipate, but CEQ has prepared a qualitative analysis in the 
accompanying regulatory impact analysis (RIA).
---------------------------------------------------------------------------

    \130\ See E.O. 12866, Regulatory Planning and Review, 58 FR 
51735, 51737 (Oct. 4, 1993); E.O. 14094, Modernizing Regulatory 
Review, 88 FR 21879, 21879-80 (Apr. 11, 2023); E.O. 13563, Improving 
Regulation and Regulatory Review, 76 FR 3821, 3822 (Jan. 21, 2011).
    \131\ See generally Cong. Rsch. Serv. R42479, The Role of the 
Environmental Review Process in Federally Funded Highway Projects: 
Background and Issues for Congress (2012), https://crsreports.congress.gov/product/pdf/R/R42479.
---------------------------------------------------------------------------

    CEQ received two comments on the draft RIA. One commenter stated 
that CEQ should include more detailed explanation of the flaws 
associated with the 2020 Rule's RIA and how the revised rule rectifies 
those flaws to produce net benefits, including by discussing evidence 
that suggests the NEPA process contributes to greater environmental 
benefits that the 2020 RIA did not consider; aligning the explanation 
of the alternative of retaining the 2020 Rule, as amended by the Phase 
I rulemaking, with guidance regarding baselines as a scenario with zero 
incremental benefits or costs; and removing any distinction between 
direct and indirect benefits or costs to avoid inadvertently 
downplaying the proposed rule's benefits and costs. The second 
commenter stated that CEQ should account for economic impacts of NEPA-
related delays in project implementation in the RIA, and provided 
information on how labor, procurement, and material costs increase as a 
project is delayed.
    In response to the first comment, CEQ has revised the RIA. In 
response to the second comment, CEQ acknowledges that project delays 
often result in labor, procurement, and material costs increases. The 
revisions to the NEPA regulations in this final rule will improve the 
efficiency and effectiveness of the NEPA process, and thereby save time 
and reduce overall project costs by providing a clear process for 
evaluating alternatives and effects; coordinating agencies and relevant 
stakeholders, including the public, more efficiently; identifying and 
avoiding problems that may occur in later stages of project 
development; and reducing litigation. CEQ provides its detailed 
analysis in the accompanying Regulatory Impact Analysis, which CEQ 
incorporates by reference into this final rule.

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

    The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et 
seq., and E.O. 13272, Proper Consideration of Small Entities in Agency 
Rulemaking,\132\ require agencies to assess the impacts of proposed and 
final rules on small entities. Under the RFA, small entities include 
small businesses, small organizations, and small governmental 
jurisdictions. An agency must prepare an Initial Regulatory Flexibility 
Analysis unless it determines and certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. See 5 U.S.C. 605(b). This final rule does not directly 
regulate small entities. Rather, the rule applies to Federal agencies 
and sets forth the process for their compliance with NEPA. Accordingly, 
CEQ hereby certifies that the rule will not have a significant economic 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \132\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

    One commenter asserted that CEQ should develop an economic 
sustainability plan for the proposed rule. Another commenter asserted 
that CEQ's statement in the proposed rule that the rulemaking would not 
impact small businesses was insufficient and that CEQ must prepare a 
regulatory

[[Page 35552]]

flexibility plan that describes the impact of the proposed rule on 
small entities to comply with the Small Business Regulatory Enforcement 
Fairness Act. The commenter asserted that the proposed rulemaking will 
impact small businesses, particularly in the mining industry. For the 
reasons set forth in this preamble, CEQ declines to prepare the 
requested plan because the final rule applies to Federal agencies and 
does not directly regulate small businesses or other small entities.

C. National Environmental Policy Act

    Under the CEQ regulations, major Federal actions may include 
regulations. When CEQ issued regulations in 1978, it prepared a 
``special environmental assessment'' for illustrative purposes pursuant 
to E.O. 11991.\133\ The NPRM for the 1978 rule stated ``the impacts of 
procedural regulations of this kind are not susceptible to detailed 
analysis beyond that set out in the assessment.'' \134\ Similarly, in 
1986, while CEQ stated in the final rule that there were ``substantial 
legal questions as to whether entities within the Executive Office of 
the President are required to prepare environmental assessments,'' it 
also prepared a special EA.\135\ The special EA issued in 1986 
supported a FONSI, and there was no finding made for the assessment of 
the 1978 final rule. CEQ also prepared a special EA and reached a FONSI 
for the Phase 1 rulemaking.
---------------------------------------------------------------------------

    \133\ See CEQ, National Environmental Policy Act--Regulations: 
Proposed Implementation of Procedural Provisions, 43 FR 25230, 25232 
(June 9, 1978); see E.O. 11991, supra note 29.
    \134\ See CEQ, National Environmental Policy Act--Regulations: 
Proposed Implementation of Procedural Provisions, supra note 133, at 
25232.
    \135\ See National Environmental Policy Act Regulations; 
Incomplete or Unavailable Information, supra note 32, at 15619.
---------------------------------------------------------------------------

    The final rule makes it explicit that a NEPA analysis is not 
required for establishing or updating NEPA procedures, see Sec.  
1507.3(b)(3), and CEQ continues to consider NEPA not to require a NEPA 
analysis for CEQ's NEPA regulations. See Heartwood v. U.S. Forest 
Serv., 230 F.3d 947, 954-55 (7th Cir. 2000) (finding that neither NEPA 
or the CEQ regulations required the Forest Service to conduct an EA or 
an EIS prior to the promulgation of its procedures creating a CE). 
Nevertheless, based on past practice, CEQ developed a draft special EA, 
has posted it in the docket, and invited comments in the proposed rule.
    CEQ received two comments on its compliance with NEPA. The 
commenters generally asserted that the Special EA conducted for this 
rulemaking was inadequate and not justified by precedent. One commenter 
argued that this rulemaking requires an EIS because the proposed 
changes can reasonably be expected to have a significant effect on the 
environment. The commenter asserted that provisions allowing the 
adoption and use of another agency's CEs, allowing agencies to modify 
their NEPA procedures without going through the rulemaking process; and 
exempting large-scale power plants from having to prepare an EIS 
supported their position. The commenter also argued that comments on 
the rulemaking were not visible to the public, and therefore did not 
fulfill public comment requirements.
    CEQ declines to prepare an EIS for the reasons discussed earlier in 
this section. CEQ notes that the first proposed change noted by the 
commenter, related to adopting CEs, implements section 109 of NEPA, 
which allows such adoption and use by statute. See 42 U.S.C. 4336c. 
With respect to the second proposed change noted by the commenter, the 
CEQ regulations have never required agencies to conduct rulemaking for 
the development or revision of their implementing procedures, but have 
always required agencies to provide public notice and comment. Further, 
this final rule does not specifically address NEPA reviews for large-
scale power plants. Rather the regulations set the standards for when 
agencies must prepare EISs and leaves the decision of whether an EIS is 
required to a case-by-case determination by the agencies, as has always 
been the case. Finally, CEQ notes that, in the interest of 
transparency, comments received on the proposed rule were posted to the 
public docket.\136\
---------------------------------------------------------------------------

    \136\ See National Environmental Policy Act Implementing 
Regulations Revisions Phase 2, Docket No. CEQ-2023-0003, https://www.regulations.gov/docket/CEQ-2023-0003.
---------------------------------------------------------------------------

D. Executive Order 13132, Federalism

    E.O. 13132 requires agencies to develop an accountable process to 
ensure meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism 
implications.\137\ Policies that have federalism implications include 
regulations that have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.\138\ CEQ received one comment asserting that this 
rulemaking would impact States, and requested that CEQ revisit its 
conclusion that the rulemaking does not pose federalism implications. 
CEQ disagrees with the commenter. This rule does not have federalism 
implications because it applies to Federal agencies, not States. CEQ 
notes that States may elect to assume NEPA responsibilities under 
Federal statutes,\139\ but States are further governed by the 
regulations and agreements under those programs.
---------------------------------------------------------------------------

    \137\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
    \138\ Id. at 43256.
    \139\ See, e.g., 23 U.S.C. 327.
---------------------------------------------------------------------------

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

    E.O. 13175 requires agencies to have a process to ensure meaningful 
and timely input by Tribal officials in the development of policies 
that have Tribal implications.\140\ Such policies include regulations 
that have substantial direct effects on one or more Tribal Nations, on 
the relationship between the Federal Government and Tribal Nations, or 
on the distribution of power and responsibilities between the Federal 
Government and Tribal Nations.\141\ CEQ has assessed the impact of this 
final rule on Indian Tribal governments and has determined that the 
rule does significantly or uniquely affect Tribal Nations. CEQ engaged 
in government-to-government consultation with Tribal Nations on the 
Phase 2 rulemaking. As required by E.O. 13175, CEQ held a Tribal 
consultation on the NEPA regulations generally on September 30, 2021, 
on this rulemaking on November 12, 2021, prior to the publication of 
the NPRM, and on September 6, 2023, and September 12, 2023, following 
publication of the NPRM.\142\ In addition to the feedback provided 
during these consultation sessions, CEQ received a number of written 
comments from Tribal Nations during the public comment period, and 
considered these written comments in the development of the final rule.
---------------------------------------------------------------------------

    \140\ E.O. 13175, supra note 57, at sec. 5(a).
    \141\ Id. sec. 1(a).
    \142\ Id. sec. 5.
---------------------------------------------------------------------------

    Several Tribal Nations agreed with CEQ's preliminary determination 
that the proposed rule significantly or uniquely affects Tribal 
Nations. One Tribal Nation requested that CEQ acknowledge its written 
comments as part of the Tribal consultation process, and not only as 
public comments. Several Tribes also requested additional consultation 
with CEQ in the future.
    CEQ acknowledges that the written comments it received from Tribal 
Nations constitute part of the Tribal consultation process in addition 
to the

[[Page 35553]]

public comment process and considered those comments accordingly. CEQ 
appreciates the considerable time and effort that Tribal Nations 
invested in their oral and written comments, which helped illuminate 
many aspects of how NEPA affects Tribal Nations, their lands and legal 
rights, and their citizens. These comments helped CEQ to develop a 
better final rule. CEQ plans to continue to engage in government-to-
government consultation with federally recognized Tribes and in 
consultation with Alaska Native Corporations on the implementation of 
its NEPA regulations.

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

    E.O. 12898 and E.O. 14096 charge agencies to make achieving 
environmental justice part of their missions, as appropriate and 
consistent with applicable law, by identifying, analyzing, and 
addressing disproportionate and adverse human health and environmental 
effects (including risks) and hazards of Federal activities, including 
those related to climate change and cumulative impacts of environmental 
and other burdens, on communities with environmental justice 
concerns.\143\
---------------------------------------------------------------------------

    \143\ E.O. 12898, supra note 8; E.O. 14096, supra note 22.
---------------------------------------------------------------------------

    CEQ has analyzed this final rule and determined that it will not 
cause disproportionate and adverse human health or environmental 
effects on communities with environmental justice concerns. This rule 
sets forth implementing regulations for NEPA; it is in the agency 
implementation of NEPA when conducting reviews of proposed agency 
actions where consideration of environmental justice effects typically 
occurs.
    CEQ received one comment requesting that CEQ conduct research into 
the effect of immigration on environmental quality, including on 
communities with environmental justice concerns, and include study of 
immigration impacts during NEPA analysis. CEQ declines to conduct this 
research because this rule does not specifically address issues related 
to immigration or make any changes to the U.S. immigration laws or 
their implementing regulations. Any environmental effects resulting 
from specific agency actions related to immigration would be addressed 
by agencies with relevant authorities and requirements to do so and are 
not within the scope of the analysis of this rulemaking.

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

    Agencies must prepare a Statement of Energy Effects for significant 
energy actions under E.O. 13211.\144\ CEQ has determined that this 
rulemaking is not a ``significant energy action'' because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
---------------------------------------------------------------------------

    \144\ E.O. 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 
28355 (May 22, 2001).
---------------------------------------------------------------------------

    CEQ received one comment related to its compliance with E.O. 13211. 
The commenter disagreed with CEQ's determination that the proposed rule 
is not a ``significant energy action'' as described in E.O. 13211, and 
further stated that the proposed rulemaking is incongruous with E.O. 
14008, which directs agencies to deploy their full capabilities in 
combating climate change. The commenter asserted that the proposed rule 
will have an effect on the energy supply that exceeds $100 million and 
would hamper efforts to achieve a clean energy transition.
    For the reasons set forth in this preamble, CEQ disagrees that the 
rule will hamper efforts to achieve a clean energy transition or have a 
significant effect on the energy supply. To the contrary, the proposed 
rule will facilitate the responsible development of energy resources, 
including carbon pollution-free energy, by promoting efficient and 
effective environmental reviews.

H. Executive Order 12988, Civil Justice Reform

    Under section 3(a) of E.O. 12988, agencies must review their 
proposed regulations to eliminate drafting errors and ambiguities, 
draft them to minimize litigation, and provide a clear legal standard 
for affected conduct.\145\ Section 3(b) provides a list of specific 
issues for review to conduct the reviews required by section 3(a).\146\ 
CEQ did not receive any comments specific to E.O. 12988. CEQ has 
conducted the review under E.O. 12988 and determined that this final 
rule complies with its requirements.
---------------------------------------------------------------------------

    \145\ E.O. 12988, Civil Justice Reform, 61 FR 4729, 4731 (Feb. 
7, 1996).
    \146\ Id.
---------------------------------------------------------------------------

I. Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1531, requires Federal agencies to assess the effects of their 
regulatory actions on Tribal, State, and local governments, and the 
private sector to the extent that such regulations incorporate 
requirements specifically set forth in law. Before promulgating a rule 
that may result in the expenditure by a Tribal, State, or local 
government, in the aggregate, or by the private sector of $100 million, 
adjusted annually for inflation, in any 1 year, an agency must prepare 
a written statement that assesses the effects on Tribal, State, and 
local governments and the private sector. 2 U.S.C. 1532. CEQ did not 
receive any comments related to the Unfunded Mandates Reform Act.
    This final rule applies to Federal agencies and will not result in 
expenditures of $100 million or more for Tribal, State, and local 
governments, in the aggregate, or the private sector in any 1 year. 
This action also will not impose any enforceable duty, contain any 
unfunded mandate, or otherwise have any effect on small governments 
subject to the requirements of 2 U.S.C. 1531 et seq.

J. Paperwork Reduction Act

    This final rule will not impose any new information collection 
burden that would require additional review or approval by OMB under 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
    CEQ received one comment related to the PRA. The commenter 
disagreed with CEQ's preliminary determination that the proposed rule 
would not impose additional burden under the PRA, stating that the 
review of proposed changes to NEPA and future changes to agency NEPA 
procedures and guidelines will impose significant burdens on State 
agencies. The commenter also expressed concern that the proposed 
changes to include technical analyses in appendices does not change or 
limit the amount of material that must be reviewed.
    CEQ disagrees with the commenter's assertions. General 
solicitations of public comments of the sort associated with the 
development of agency NEPA procedures and guidelines or the publication 
of a draft environmental document are not subject to the PRA. See 5 CFR 
1320.3(h)(4), (8) (exempting from the PRA ``[f]acts or opinions 
submitted in response to general solicitations of comments from the 
public, published in the Federal Register or other publications, 
regardless of the form or format thereof, provided that no person is 
required to supply specific information pertaining to the commenter, 
other than that

[[Page 35554]]

necessary for self-identification, as a condition of the agency's full 
consideration of the comment,'' and ``[f]acts or opinions obtained or 
solicited at or in connection with public hearings or meetings''). 
Furthermore, while the rule clarifies which material agencies should 
include in the body of an environmental document and which they should 
include in an appendix, it does not increase the overall amount of 
materials available to States or members of the public to review, or 
require States or members of the public to review those materials.

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

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

Brenda Mallory,
Chair.

0
For the reasons discussed in the preamble, the Council on Environmental 
Quality amends 40 CFR chapter V by revising and republishing subchapter 
A to read as follows:

Chapter V--Council on Environmental Quality

Subchapter A--National Environmental Policy Act Implementing 
Regulations

Part 1500--Purpose And Policy
Part 1501--NEPA And Agency Planning
Part 1502--Environmental Impact Statement
Part 1503--Commenting On Environmental Impact Statements
Part 1504--Dispute Resolution And Pre-Decisional Referrals
Part 1505--NEPA and Agency Decision Making
Part 1506--Other Requirements Of NEPA
Part 1507--Agency Compliance
Part 1508--Definitions

PART 1500--PURPOSE AND POLICY

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

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


Sec.  1500.1  Purpose.

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


Sec.  1500.2  Policy.

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

[[Page 35555]]

disproportionately affect communities with environmental justice 
concerns.
    (f) Use all practicable means, consistent with the requirements of 
the Act and other essential considerations of national policy, to 
restore and enhance the quality of the human environment and avoid or 
minimize any possible adverse effects of their actions upon the quality 
of the human environment.


Sec.  1500.3  NEPA compliance.

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


Sec.  1500.4  Concise and informative environmental documents.

    Agencies shall prepare analytical, concise, and informative 
environmental documents by:
    (a) Meeting appropriate page limits (Sec. Sec.  1501.5(g) and 
1502.7 of this subchapter).
    (b) Discussing only briefly issues other than important ones (e.g., 
Sec.  1502.2(b) of this subchapter).
    (c) Writing environmental documents in plain language (e.g., Sec.  
1502.8 of this subchapter).
    (d) Following a clear format for environmental impact statements 
(Sec.  1502.10 of this subchapter).
    (e) Emphasizing the portions of the environmental document that are 
most useful to decision makers and the public (e.g., Sec. Sec.  
1502.14, 1502.15, and 1502.16 of this subchapter) and reducing emphasis 
on background material (e.g., Sec.  1502.1 of this subchapter).
    (f) Using the scoping process to identify important environmental 
issues deserving of study and to deemphasize unimportant issues, 
narrowing the scope of the environmental impact statement process (or, 
where an agency elects to do so, the environmental assessment process) 
accordingly (Sec. Sec.  1501.9 and 1502.4 of this subchapter).
    (g) Summarizing the environmental impact statement (Sec.  1502.12 
of this subchapter).
    (h) Using programmatic environmental documents and tiering from 
documents of broad scope to those of narrower scope, to eliminate 
repetitive discussions of the same issues (Sec.  1501.11 of this 
subchapter).
    (i) Incorporating by reference (Sec.  1501.12 of this subchapter).
    (j) Integrating NEPA requirements with other environmental review 
and consultation requirements (Sec.  1502.24 of this subchapter).
    (k) Requiring that comments be as specific as possible (Sec.  
1503.3 of this subchapter).
    (l) When changes are minor, attaching and publishing only changes 
to the draft environmental impact statement rather than rewriting and 
publishing the entire statement (Sec.  1503.4(c) of this subchapter).
    (m) Eliminating duplication with State, Tribal, and local 
procedures, by providing for joint preparation of environmental 
documents where practicable (Sec.  1506.2 of this subchapter), and with 
other Federal procedures, by providing that an agency may adopt 
appropriate environmental documents prepared by another Federal agency 
(Sec.  1506.3 of this subchapter).
    (n) Combining environmental documents with other documents (Sec.  
1506.4 of this subchapter).


Sec.  1500.5  Efficient process.

    Agencies shall improve efficiency of their NEPA processes by:
    (a) Establishing categorical exclusions to define categories of 
actions that normally do not have a significant effect on the human 
environment (Sec. Sec.  1501.4 and 1507.3(c)(8) of this subchapter) and 
therefore do not require preparation of an environmental assessment or 
environmental impact statement.
    (b) Using a finding of no significant impact when an action not 
otherwise excluded will not have a significant effect on the human 
environment (Sec.  1501.6 of this subchapter) and therefore does not 
require preparation of an environmental impact statement.
    (c) Integrating the NEPA process into early planning (Sec.  1501.2 
of this subchapter).
    (d) Engaging in interagency cooperation, including with affected 
Federal, State, Tribal, and local agencies, before or during the 
preparation of an environmental assessment or environmental impact 
statement, rather than waiting to request or submit comments on a 
completed document (Sec. Sec.  1501.7 and 1501.8 of this subchapter).
    (e) Ensuring the swift and fair resolution of lead agency disputes 
(Sec.  1501.7 of this subchapter).
    (f) Using the scoping process for early identification of the 
important issues that require detailed analysis (Sec.  1502.4 of this 
subchapter).
    (g) Meeting appropriate deadlines for the environmental assessment 
and environmental impact statement processes (Sec.  1501.10 of this 
subchapter).
    (h) Preparing environmental documents early in the process 
(Sec. Sec.  1502.5 and 1501.5(d) of this subchapter).
    (i) Integrating NEPA requirements with other environmental review 
and consultation requirements (Sec.  1502.24 of this subchapter).
    (j) Eliminating duplication with State, Tribal, and local 
procedures by providing for joint preparation of environmental 
documents where practicable (Sec.  1506.2 of this subchapter) and with 
other Federal procedures by providing that agencies may jointly prepare 
or adopt appropriate environmental documents prepared by another agency 
(Sec.  1506.3 of this subchapter).
    (k) Combining environmental documents with other documents (Sec.  
1506.4 of this subchapter).

[[Page 35556]]

    (l) Using accelerated procedures for proposals for legislation 
(Sec.  1506.8 of this subchapter).


Sec.  1500.6  Agency authority.

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

PART 1501--NEPA AND AGENCY PLANNING

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

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


Sec.  1501.1  Purpose.

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


Sec.  1501.2  Apply NEPA early in the process.

    (a) Agencies should integrate the NEPA process with other planning 
and authorization processes at the earliest reasonable time to ensure 
that agencies consider environmental effects in their planning and 
decisions, to avoid delays later in the process, and to head off 
potential conflicts.
    (b) Each agency shall:
    (1) Comply with the mandate of section 102(2)(A) of NEPA to utilize 
a systematic, interdisciplinary approach, which will ensure the 
integrated use of the natural and social sciences and the environmental 
design arts in planning and in decision making that may have an impact 
on the human environment, as specified by Sec.  1507.2(a) of this 
subchapter.
    (2) Identify environmental effects and values in adequate detail so 
the decision maker can appropriately consider such effects and values 
alongside economic and technical analyses. Whenever practicable, 
agencies shall review and publish environmental documents and 
appropriate analyses at the same time as other planning documents.
    (3) Study, develop, and describe appropriate alternatives to 
recommended courses of action in any proposal that involves unresolved 
conflicts concerning alternative uses of available resources, as 
provided by section 102(2)(H) of NEPA.
    (4) Provide for actions subject to NEPA that are planned by 
applicants before Federal involvement so that:
    (i) Policies or designated staff are available to advise potential 
applicants of studies or other information foreseeably required for 
later Federal action.
    (ii) The Federal agency consults early with appropriate State, 
Tribal, and local governments and with interested persons and 
organizations when their involvement is reasonably foreseeable.
    (iii) The Federal agency commences its NEPA process at the earliest 
reasonable time (Sec. Sec.  1501.5(d) and 1502.5(b) of this 
subchapter).


Sec.  1501.3  Determine the appropriate level of NEPA review.

    (a) Applicability. As a threshold determination, an agency shall 
assess whether NEPA applies to the proposed activity or decision. In 
assessing whether NEPA applies, Federal agencies should determine:
    (1) Whether the proposed activity or decision is exempted from NEPA 
by law;
    (2) Whether compliance with NEPA would clearly and fundamentally 
conflict with the requirements of another provision of Federal law;
    (3) Whether the proposed activity or decision is not a major 
Federal action (Sec.  1508.1(w) of this subchapter);
    (4) Whether the proposed activity or decision is not a final agency 
action within the meaning of such term in chapter 5 of title 5, United 
States Code; or
    (5) Whether the proposed activity or decision is a non-
discretionary action with respect to which such agency does not have 
authority to take environmental factors into consideration in 
determining whether to take the proposed action.
    (b) Scope of action and analysis. If the agency determines that 
NEPA applies, the agency shall consider the scope of the proposed 
action and its effects to inform the agency's determination of the 
appropriate level of NEPA review and whether aspects of the action are 
non-discretionary. The agency shall use, as appropriate, the public 
engagement and scoping mechanisms in Sec. Sec.  1501.9 and 1502.4 of 
this subchapter to inform consideration of the scope of the proposed 
action and determination of the level of NEPA review. The agency shall 
evaluate, in a single review, proposals or parts of proposals that are 
related closely enough to be, in effect, a single course of action. The 
agency shall not avoid a determination of significance under paragraph 
(c) of this section by terming an action temporary that is not 
temporary in fact or segmenting an action into smaller component parts. 
The agency also shall consider whether there are connected actions, 
which are closely related Federal activities or decisions that should 
be considered in the same NEPA review that:
    (1) Automatically trigger other actions that may require NEPA 
review;
    (2) Cannot or will not proceed unless other actions are taken 
previously or simultaneously; or
    (3) Are interdependent parts of a larger action and depend on the 
larger action for their justification.
    (c) Levels of NEPA review. In assessing the appropriate level of 
NEPA review, agencies may make use of any reliable data source and are 
not required to undertake new scientific or technical research unless 
it is essential to a reasoned choice among alternatives, and the 
overall costs and timeframe of obtaining it are not unreasonable.

[[Page 35557]]

Agencies should determine whether the proposed action:
    (1) Is appropriately categorically excluded (Sec.  1501.4);
    (2) Is not likely to have significant effects or the significance 
of the effects is unknown and is therefore appropriate for an 
environmental assessment (Sec.  1501.5); or
    (3) Is likely to have significant effects and is therefore 
appropriate for an environmental impact statement (part 1502 of this 
subchapter).
    (d) Significance determination--context and intensity. In 
considering whether an adverse effect of the proposed action is 
significant, agencies shall examine both the context of the action and 
the intensity of the effect. In assessing context and intensity, 
agencies should consider the duration of the effect. Agencies may also 
consider the extent to which an effect is adverse at some points in 
time and beneficial in others (for example, in assessing the 
significance of a habitat restoration action's effect on a species, an 
agency may consider both any short-term harm to the species during 
implementation of the action and any benefit to the same species once 
the action is complete). However, agencies shall not offset an action's 
adverse effects with other beneficial effects to determine significance 
(for example, an agency may not offset an action's adverse effect on 
one species with its beneficial effect on another species).
    (1) Agencies shall analyze the significance of an action in several 
contexts. Agencies should consider the characteristics of the 
geographic area, such as proximity to unique or sensitive resources or 
communities with environmental justice concerns. Depending on the scope 
of the action, agencies should consider the potential global, national, 
regional, and local contexts as well as the duration, including short-
and long-term effects.
    (2) Agencies shall analyze the intensity of effects considering the 
following factors, as applicable to the proposed action and in 
relationship to one another:
    (i) The degree to which the action may adversely affect public 
health and safety.
    (ii) The degree to which the action may adversely affect unique 
characteristics of the geographic area such as historic or cultural 
resources, parks, Tribal sacred sites, prime farmlands, wetlands, wild 
and scenic rivers, or ecologically critical areas.
    (iii) Whether the action may violate relevant Federal, State, 
Tribal, or local laws or other requirements or be inconsistent with 
Federal, State, Tribal, or local policies designed for the protection 
of the environment.
    (iv) The degree to which the potential effects on the human 
environment are highly uncertain.
    (v) The degree to which the action may adversely affect resources 
listed or eligible for listing in the National Register of Historic 
Places.
    (vi) The degree to which the action may adversely affect an 
endangered or threatened species or its habitat, including habitat that 
has been determined to be critical under the Endangered Species Act of 
1973.
    (vii) The degree to which the action may adversely affect 
communities with environmental justice concerns.
    (viii) The degree to which the action may adversely affect rights 
of Tribal Nations that have been reserved through treaties, statutes, 
or Executive Orders.


Sec.  1501.4  Categorical exclusions.

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

[[Page 35558]]

    (iii) Environmental conditions or information upon which the 
agency's determination was based have changed.
    (e) An agency may adopt and apply a categorical exclusion listed in 
another agency's NEPA procedures to a proposed action or a category of 
proposed actions consistent with this paragraph. The agency shall:
    (1) Identify the categorical exclusion listed in another agency's 
NEPA procedures that covers its proposed action or a category of 
proposed actions;
    (2) Consult with the agency that established the categorical 
exclusion to ensure that the proposed action or category of proposed 
actions to which the agency intends to apply the categorical exclusion 
is appropriate;
    (3) Provide public notification of the categorical exclusion that 
the agency is adopting, including a brief description of the proposed 
action or category of proposed actions to which the agency intends to 
apply the adopted categorical exclusion, the process the agency will 
use to evaluate for extraordinary circumstances consistent with 
paragraph (b) of this section, and a brief description of the agencies' 
consultation;
    (4) In applying the adopted categorical exclusion to a proposed 
action, evaluate the proposed action for extraordinary circumstances, 
consistent with paragraph (b) of this section; and
    (5) Publish the documentation of the application of the adopted 
categorical exclusion.


Sec.  1501.5  Environmental assessments.

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


Sec.  1501.6  Findings of no significant impact.

    (a) After completing an environmental assessment, an agency shall 
prepare:
    (1) A finding of no significant impact if the agency determines, 
based on the environmental assessment, that NEPA does not require 
preparation of an environmental impact statement because the proposed 
action will not have significant effects;
    (2) A mitigated finding of no significant impact if the agency 
determines, based on the environmental assessment, that NEPA does not 
require preparation of an environmental impact statement because the 
proposed action will not have significant effects due to mitigation; or
    (3) An environmental impact statement if the agency determines, 
based on the environmental assessment, that the action will have 
significant effects.
    (b)(1) The agency shall make the finding of no significant impact 
available to the affected public as specified in Sec.  1501.9(c)(5).
    (2) In the following circumstances, the agency shall make the 
finding of no significant impact available for public review for 30 
days before the agency determines whether to prepare an environmental 
impact statement and before the action may begin:
    (i) The proposed action is or is closely similar to one that 
normally requires the preparation of an environmental impact statement 
under the procedures adopted by the agency pursuant to Sec.  1507.3 of 
this subchapter; or
    (ii) The nature of the proposed action is one without precedent.
    (c) The finding of no significant impact shall include the 
environmental assessment or incorporate it by reference and shall note 
any other environmental documents related to it (Sec.  1502.4(d)(3) of 
this subchapter). If the environmental assessment is included, the 
finding need not repeat any of the discussion in the assessment but may 
incorporate it by reference.
    (d) The finding of no significant impact shall state the authority 
for any mitigation that the agency has adopted and any applicable 
monitoring or enforcement provisions. If the agency finds no 
significant effects based on mitigation, the mitigated finding of no 
significant impact shall state the enforceable mitigation requirements 
or commitments that will be undertaken and the authority to enforce 
them, such as terms and conditions or other measures in a relevant 
permit, incidental take statement, or other agreement, and the agency 
shall prepare a monitoring and compliance plan for that mitigation 
consistent with

[[Page 35559]]

Sec.  1505.3(c) of this subchapter. In addition, the agency shall 
prepare a monitoring and compliance plan for other mitigation as 
required by Sec.  1505.3(c) of this subchapter.


Sec.  1501.7  Lead agency.

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


Sec.  1501.8  Cooperating agencies.

    (a) The purpose of this section is to emphasize agency cooperation 
early in the NEPA process. Upon request of the lead agency, any Federal 
agency with jurisdiction by law shall be a cooperating agency. In 
addition, upon request of the lead agency, any other Federal agency 
with special expertise with respect to any environmental issue may be a 
cooperating agency. A State, Tribal, or local agency of similar 
qualifications may become a cooperating agency by agreement with the 
lead agency. Relevant special expertise may include Indigenous 
Knowledge. An agency may request that the lead agency designate it a 
cooperating agency, and a Federal agency may appeal a denial of its 
request to the Council.
    (b) Each cooperating agency shall:
    (1) Participate in the NEPA process at the earliest practicable 
time.
    (2) Participate in the scoping process (described in Sec.  1502.4).
    (3) On request of the lead agency, assume responsibility for 
developing information and preparing environmental analyses, including 
portions of the environmental impact statement or environmental 
assessment concerning which the cooperating agency has special 
expertise.
    (4) On request of the lead agency, make available staff support to 
enhance the lead agency's interdisciplinary capability.
    (5) Normally use its own funds. To the extent available funds 
permit, the lead agency shall fund those major activities or analyses 
it requests from cooperating agencies. Potential lead agencies shall 
include such funding requirements in their budget requests.
    (6) Consult with the lead agency in developing and updating the 
schedule (Sec.  1501.10), meet the schedule, and elevate, as soon as 
practicable, to the senior agency official of the lead agency any 
issues relating to purpose and need, alternatives, or other issues that 
may affect any agencies' ability to meet the schedule.
    (7) Meet the lead agency's schedule for providing comments.
    (8) To the maximum extent practicable, jointly issue environmental 
documents with the lead agency.
    (c) In response to a lead agency's request for assistance in 
preparing the environmental documents (described in paragraph (b)(3), 
(4), or (5) of this section), a cooperating agency may reply that other 
program commitments preclude any involvement or the degree of 
involvement requested in the action that is the subject of the 
environmental impact statement or environmental assessment. The 
cooperating agency shall submit a copy of this reply to the Council and 
the senior agency official of the lead agency.

[[Page 35560]]

Sec.  1501.9  Public and governmental engagement.

    (a) Purpose and responsibility. The purpose of public engagement is 
to inform the public of an agency's proposed action, allow for 
meaningful engagement during the NEPA process, and ensure decision 
makers are informed by the views of the public. The purpose of 
governmental engagement is to identify the potentially affected 
Federal, State, Tribal, and local governments, invite them to serve as 
cooperating agencies, as appropriate, and ensure that participating 
agencies have opportunities to engage in the environmental review 
process, as appropriate. This section sets forth agencies' 
responsibilities and best practices to conduct public and governmental 
engagement. Agencies shall determine the appropriate methods of public 
and governmental engagement for their proposed actions.
    (b) Determination of scope. Agencies shall use public and 
governmental engagement, as appropriate, to inform the level of review 
for and scope of analysis of a proposed action, consistent with Sec.  
1501.3 of this subchapter. For environmental impact statements, in 
addition to the requirements of this section, agencies also shall 
comply with the requirements for scoping set forth in Sec.  1502.4 of 
this subchapter. For environmental assessments, in addition to the 
requirements of this section, agencies should consider applying the 
requirements for scoping set forth in Sec.  1502.4 of this subchapter, 
as appropriate.
    (c) Outreach and notification. Agencies shall:
    (1) Invite the participation of any likely affected Federal, State, 
Tribal, and local agencies and governments, as early as practicable, 
including, as appropriate, as cooperating agencies under Sec.  1501.8 
of this subchapter;
    (2) Conduct, as appropriate, early engagement with likely affected 
or interested members of the public (including those who might not be 
in accord with the action), unless there is a limited exception under 
Sec.  1507.3(d)(3) of this subchapter; and
    (3) Consider what methods of outreach and notification are 
necessary and appropriate based on the likely affected entities and 
persons; the scope, scale, and complexity of the proposed action and 
alternatives; the degree of public interest; and other relevant 
factors. When selecting appropriate methods for providing public 
notification, agencies shall consider the ability of affected persons 
and agencies to access electronic media and the primary languages of 
affected persons.
    (4) Publish notification of proposed actions they are analyzing 
through an environmental impact statement, including through a notice 
of intent consistent with Sec.  1502.4 of this subchapter.
    (5) Provide public notification of NEPA-related hearings, public 
meetings, and other opportunities for public engagement, and the 
availability of environmental documents to inform those persons and 
agencies who may be interested or affected by their proposed actions.
    (i) The agency shall notify those entities and persons who have 
requested notification on a particular action and those who have 
requested regular notification from the agency on its actions.
    (ii) In the case of an action with effects of national concern, 
notification shall also include publication of a notice in the Federal 
Register.
    (iii) In the case of an action with effects primarily of local 
concern, the notification may include distribution to or through:
    (A) State, Tribal, and local governments and agencies that may be 
interested or affected by the proposed action.
    (B) Following the affected State or Tribe's public notification 
procedures for comparable actions.
    (C) Publication in local newspapers having general circulation.
    (D) Other local media.
    (E) Potentially interested community organizations, including small 
business associations.
    (F) Publication in newsletters that may be expected to reach 
potentially interested persons.
    (G) Direct mailing to owners and occupants of nearby or affected 
property.
    (H) Posting of notification on- and off-site in the area where the 
action is to be located.
    (I) Electronic media (e.g., a project or agency website, dashboard, 
email list, or social media). Agencies should establish email 
notification lists or similar methods for the public to easily request 
electronic notifications for a proposed action.
    (6) Make environmental impact statements, the comments received, 
and any underlying documents available to the public pursuant to the 
provisions of the Freedom of Information Act, as amended (5 U.S.C. 
552), and without charge to the extent practicable.
    (d) Public meetings and hearings. Agencies shall hold or sponsor 
public hearings, public meetings, or other opportunities for public 
engagement whenever appropriate or in accordance with statutory or 
regulatory requirements or applicable agency NEPA procedures. Agencies 
may conduct public hearings and public meetings by means of electronic 
communication except where another format is required by law. When 
determining the format for a public hearing or public meeting, such as 
whether an in-person or virtual meeting, or formal hearing or listening 
session is most appropriate, agencies shall consider the needs of 
affected communities. When accepting comments for electronic or virtual 
public hearings or meetings, agencies shall allow the public to submit 
comments electronically, by regular mail, or by other appropriate 
methods. Agencies should make a draft environmental document available 
to the public at least 15 days in advance when it is the subject of a 
public hearing or meeting unless the purpose of such hearing or meeting 
is to provide information for the development of the document.
    (e) Agency procedures. Agencies shall make diligent efforts to 
engage the public in preparing and implementing their NEPA procedures 
(Sec.  1507.3 of this subchapter).


Sec.  1501.10  Deadlines and schedule for the NEPA process.

    (a) To ensure that agencies conduct sound NEPA reviews as 
efficiently and expeditiously as practicable, Federal agencies shall 
set deadlines and schedules appropriate to individual actions or types 
of actions consistent with this section and the time intervals required 
by Sec.  1506.10 of this subchapter. Where applicable, the lead agency 
shall establish the schedule for a proposed action and make any 
necessary updates to the schedule in consultation with and seek the 
concurrence of any joint lead, cooperating, and participating agencies, 
and in consultation with any applicants.
    (b) To ensure timely decision making, agencies shall complete:
    (1) Environmental assessments within 1 year, unless the lead agency 
extends the deadline in writing and, as applicable, in consultation 
with any applicant, and establishes a new deadline that provides only 
so much additional time as is necessary to complete the environmental 
assessment.
    (2) Environmental impact statements within 2 years, unless the lead 
agency extends the deadline in writing and, as applicable, in 
consultation with any applicant and establishes a new deadline that 
provides only so much additional time as is necessary to complete the 
environmental impact statement.

[[Page 35561]]

    (3) The deadlines in paragraphs (b)(1) and (2) of this section are 
measured from the sooner of, as applicable:
    (i) the date on which the agency determines that NEPA requires an 
environmental impact statement or environmental assessment for the 
proposed action;
    (ii) the date on which the agency notifies an applicant that the 
application to establish a right-of-way for the proposed action is 
complete; or
    (iii) the date on which the agency issues a notice of intent for 
the proposed action.
    (4) The deadlines in paragraphs (b)(1) and (2) of this section are 
measured to, as applicable:
    (i) For environmental assessments, the date on which the agency:
    (A) Publishes an environmental assessment;
    (B) Where applicable, makes the environmental assessment available 
pursuant to an agency's pre-decisional administrative review process; 
or
    (C) Issues a notice of intent to prepare an environmental impact 
statement; and
    (ii) For environmental impact statements, the date on which the 
Environmental Protection Agency publishes a notice of availability of 
the final environmental impact statement or, where applicable, the date 
on which the agency makes the final environmental impact statement 
available pursuant to an agency's pre-decisional administrative review 
process, consistent with Sec.  1506.10(c)(1) of this subchapter.
    (5) Each lead agency shall annually submit the report to Congress 
on any missed deadlines for environmental assessments and environmental 
impact statements required by section 107(h) of NEPA.
    (c) To facilitate predictability, the lead agency shall develop a 
schedule for completion of environmental impact statements and 
environmental assessments as well as any authorizations required to 
carry out the action. The lead agency shall set milestones for all 
environmental reviews, permits, and authorizations required for 
implementation of the action, in consultation with any applicant and in 
consultation with and seek the concurrence of all joint lead, 
cooperating, and participating agencies, as soon as practicable. 
Schedules may vary depending on the type of action and in consideration 
of other factors in paragraph (d) of this section. The lead agency 
should develop a schedule that is based on its expertise reviewing 
similar types of actions under NEPA. All agencies with milestones, 
including those for a review, permit, or authorization, in the schedule 
shall take appropriate measures to meet the schedule. If a 
participating agency anticipates that a milestone will be missed, the 
agency shall notify, as applicable, the agency responsible for the 
milestone and the lead agency, and request that they take appropriate 
measures to comply with the schedule. As soon as practicable, the lead 
and any other agency affected by a potentially missed milestone shall 
elevate any unresolved disputes contributing to the potentially missed 
milestone to the appropriate officials of the agencies responsible for 
the potentially missed milestone, to ensure timely resolution within 
the deadlines for the individual action.
    (d) The lead agency may consider the following factors in 
determining the schedule and deadlines:
    (1) Potential for environmental harm.
    (2) Size of the proposed action.
    (3) State of the art of analytic techniques.
    (4) Degree of public need for the proposed action, including the 
consequences of delay.
    (5) Number of persons and agencies affected.
    (6) Availability of relevant information.
    (7) Degree to which a substantial dispute exists as to the size, 
location, nature, or consequences of the proposed action and its 
effects.
    (8) Time limits imposed on the agency by law, regulation, Executive 
order, or court ordered deadlines.
    (9) Time necessary to conduct government-to-government Tribal 
consultation.
    (e) The schedule for environmental impact statements shall include 
the following milestones:
    (1) The publication of the notice of intent;
    (2) The issuance of the draft environmental impact statement;
    (3) The public comment period on the draft environmental impact 
statement, consistent with Sec.  1506.10 of this subchapter;
    (4) The issuance of the final environmental impact statement; and
    (5) The issuance of the record of decision.
    (f) The schedule for environmental assessments shall include the 
following milestones:
    (1) Decision to prepare an environmental assessment;
    (2) Issuance of the draft environmental assessment, where 
applicable;
    (3) The public comment period on the draft environmental 
assessment, consistent with Sec.  1501.5 of this subchapter, where 
applicable; and
    (4) Issuance of the final environmental assessment and decision on 
whether to issue a finding of no significant impact or issue a notice 
of intent to prepare an environmental impact statement.
    (g) An agency may designate a person (such as the project manager 
or a person in the agency's office with NEPA responsibilities) to 
expedite the NEPA process.
    (h) For environmental impact statements, agencies shall make 
schedules for completing the NEPA process publicly available, such as 
on their website or another publicly accessible platform. If agencies 
make subsequent changes to the schedule, agencies shall publish 
revisions to the schedule and explain the basis for substantial 
changes.


Sec.  1501.11  Programmatic environmental documents and tiering.

    (a) Programmatic environmental documents. Agencies may prepare 
programmatic environmental documents, which may be either environmental 
impact statements or environmental assessments, to evaluate the 
environmental effects of policies, programs, plans, or groups of 
related activities. When agencies prepare such documents, they should 
be relevant to the agency decisions and timed to coincide with 
meaningful points in agency planning and decision making. Agencies may 
use programmatic environmental documents to conduct a broad or holistic 
evaluation of effects or policy alternatives; evaluate widely 
applicable measures; or avoid duplicative analysis for individual 
actions by first considering relevant issues at a broad or programmatic 
level.
    (1) When preparing programmatic environmental documents (including 
proposals by more than one agency), agencies may find it useful to 
evaluate the proposal(s) in one of the following ways:
    (i) Geographically, including actions occurring in the same general 
location, such as body of water, region, or metropolitan area.
    (ii) Thematically or by sector, including actions that have 
relevant similarities, such as common timing, effects, alternatives, 
methods of implementation, technology, media, or subject matter.
    (iii) By stage of technological development, including Federal or 
federally assisted research, development, or demonstration programs for 
new technologies that, if applied, could significantly affect the 
quality of the human environment. Documents on such programs should be

[[Page 35562]]

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


Sec.  1501.12  Incorporation by reference into environmental documents.

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

PART 1502--ENVIRONMENTAL IMPACT STATEMENT

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

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


Sec.  1502.1  Purpose of environmental impact statement.

    (a) The primary purpose of an environmental impact statement 
prepared pursuant to section 102(2)(C) of NEPA is to serve as an 
action-forcing device by ensuring agencies consider the environmental 
effects of their action in decision making, so that the policies and 
goals defined in the Act are infused

[[Page 35563]]

into the ongoing programs and actions of the Federal Government.
    (b) Environmental impact statements shall provide full and fair 
discussion of significant effects and shall inform decision makers and 
the public of reasonable alternatives that would avoid or minimize 
adverse effects or enhance the quality of the human environment. 
Agencies shall focus on important environmental issues and reasonable 
alternatives and shall reduce paperwork and the accumulation of 
extraneous background data.
    (c) Environmental impact statements shall be concise, clear, and to 
the point, and shall be supported by evidence that the agency has made 
the necessary environmental analyses. An environmental impact statement 
is more than a disclosure document. Federal agencies shall use 
environmental impact statements in conjunction with other relevant 
material to plan actions, involve the public, and make decisions.


Sec.  1502.2  Implementation.

    To achieve the purposes set forth in Sec.  1502.1, agencies shall 
prepare environmental impact statements in the following manner:
    (a) Environmental impact statements shall not be encyclopedic.
    (b) Environmental impact statements shall discuss effects in 
proportion to their significance. There shall be only brief discussion 
of other than important issues. As in an environmental assessment and 
finding of no significant impact, there should be only enough 
discussion to show why more study is not warranted.
    (c) Environmental impact statements shall be analytical, concise, 
and no longer than necessary to comply with NEPA and with the 
regulations in this subchapter. Length should be proportional to 
potential environmental effects and the scope and complexity of the 
action.
    (d) Environmental impact statements shall state how alternatives 
considered in them and decisions based on them will or will not achieve 
the requirements of sections 101 and 102(1) of NEPA, the regulations in 
this subchapter, and other environmental laws and policies.
    (e) The range of alternatives discussed in environmental impact 
statements shall encompass those to be considered by the decision 
maker.
    (f) Agencies shall not commit resources prejudicing the selection 
of alternatives before making a decision (see also Sec.  1506.1 of this 
subchapter).
    (g) Environmental impact statements shall serve as the means of 
assessing the environmental impact of proposed agency actions, rather 
than justifying decisions already made.


Sec.  1502.3  Statutory requirements for environmental impact 
statements.

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


Sec.  1502.4  Scoping.

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

[[Page 35564]]

or authorizations that will rely upon the resulting environmental 
impact statement; and
    (10) A unique identification number for tracking purposes, which 
the agency shall reference on all environmental documents prepared for 
the proposed action and in any database or tracking system for such 
documents.
    (f) Notices of withdrawal or cancellation. If an agency withdraws, 
cancels, or otherwise ceases the consideration of a proposed action 
before completing a final environmental impact statement, the agency 
shall publish a notice in the Federal Register.
    (g) Revisions. An agency shall revise the determinations made under 
paragraphs (b), (c), and (d) of this section if substantial changes are 
made later in the proposed action, or if important new circumstances or 
information arise that bear on the proposal or its effects.


Sec.  1502.5  Timing.

    An agency should commence preparation of an environmental impact 
statement as close as practicable to the time the agency is developing 
or receives a proposal so that preparation can be completed in time for 
the final statement to be included in any recommendation or report on 
the proposal. The statement shall be prepared early enough so that it 
can serve as an important practical contribution to the decision-making 
process and will not be used to rationalize or justify decisions 
already made (Sec. Sec.  1501.2 of this subchapter and 1502.2). For 
instance:
    (a) For projects directly undertaken by Federal agencies, the 
agency shall prepare the environmental impact statement at the 
feasibility analysis or equivalent stage evaluating whether to proceed 
with the project and may supplement it at a later stage, if necessary.
    (b) For applications to the agency requiring an environmental 
impact statement, the agency shall commence the statement as soon as 
practicable after receiving the complete application. Federal agencies 
should work together and with potential applicants and applicable 
State, Tribal, and local agencies and governments prior to receipt of 
the application.
    (c) For adjudication, the final environmental impact statement 
shall normally precede the final staff recommendation and that portion 
of the public hearing related to the impact study. In appropriate 
circumstances, the statement may follow preliminary hearings designed 
to gather information for use in the statement.
    (d) For informal rulemaking, the draft environmental impact 
statement shall normally accompany the proposed rule.


Sec.  1502.6  Interdisciplinary preparation.

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


Sec.  1502.7  Page limits.

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


Sec.  1502.8  Writing.

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


Sec.  1502.9  Draft, final, and supplemental statements.

    (a) Generally. Except for proposals for legislation as provided in 
Sec.  1506.8 of this subchapter, agencies shall prepare environmental 
impact statements in two stages and, where necessary, supplement them 
as provided in paragraph (d)(1) of this section.
    (b) Draft environmental impact statements. Agencies shall prepare 
draft environmental impact statements in accordance with the scope 
decided upon in the scoping process (Sec.  1502.4 of this subchapter). 
The lead agency shall work with the cooperating agencies and shall 
obtain comments as required in part 1503 of this subchapter. To the 
fullest extent practicable, the draft statement must meet the 
requirements established for final statements in section 102(2)(C) of 
NEPA and in the regulations in this subchapter. If the agency 
determines that a draft statement is so inadequate as to preclude 
meaningful analysis, the agency shall prepare and publish a 
supplemental draft of the appropriate portion. At appropriate points in 
the draft statement, the agency shall discuss all major points of view 
on the environmental effects of the alternatives, including the 
proposed action.
    (c) Final environmental impact statements. Final environmental 
impact statements shall consider and respond to comments as required in 
part 1503 of this subchapter. At appropriate points in the final 
statement, the agency shall discuss any responsible opposing view that 
was not adequately discussed in the draft statement and shall indicate 
the agency's response to the issues raised.
    (d) Supplemental environmental impact statements. Agencies:
    (1) Shall prepare supplements to either draft or final 
environmental impact statements if a major Federal action is incomplete 
or ongoing, and:
    (i) The agency makes substantial changes to the proposed action 
that are relevant to environmental concerns; or
    (ii) There are substantial new circumstances or information about 
the significance of adverse effects that bear on the analysis.
    (2) May also prepare supplements when the agency determines that 
the purposes of the Act will be furthered by doing so.
    (3) Shall prepare, publish, and file a supplement to an 
environmental impact statement (exclusive of scoping (Sec.  1502.4 of 
this subchapter)) as a draft and final environmental impact statement, 
as is appropriate to the stage of the environmental impact statement 
involved, unless the Council approves alternative arrangements (Sec.  
1506.11 of this subchapter).
    (e) Reevaluation. An agency may reevaluate an environmental impact 
statement to determine that the agency does need to prepare a 
supplement under paragraph (d) of this section. The agency should 
document its finding consistent with its agency NEPA procedures (Sec.  
1507.3 of this subchapter), or, if necessary, prepare a supplemental 
environmental assessment and finding of no significant impact.


Sec.  1502.10  Recommended format.

    (a) Agencies shall use a format for environmental impact statements 
that will encourage good analysis and clear presentation of the 
alternatives, including the proposed action. Agencies should use the 
following standard format for environmental impact statements unless 
the agency determines that there is a more effective format for 
communication:
    (1) Cover (Sec.  1502.11);
    (2) Summary (Sec.  1502.12);
    (3) Table of contents;
    (4) Purpose of and need for action (Sec.  1502.13);

[[Page 35565]]

    (5) Alternatives including the proposed action (sections 
102(2)(C)(iii) and 102(2)(H) of NEPA) (Sec.  1502.14);
    (6) Affected environment and environmental consequences (especially 
sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA) (Sec. Sec.  1502.15 
and 1502.16); and
    (7) Appendices (Sec.  1502.19), including the summary of scoping 
information (Sec.  1502.17) and the list of preparers (Sec.  1502.18).
    (b) If an agency uses a different format, it shall include 
paragraph (a) of this section, as further described in Sec. Sec.  
1502.11 through 1502.19, in any appropriate format.


Sec.  1502.11  Cover.

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


Sec.  1502.12  Summary.

    Each environmental impact statement shall contain a summary that 
adequately and accurately summarizes the statement. The summary shall 
include the major conclusions and summarize any disputed issues raised 
by agencies and the public, any issues to be resolved, and key 
differences among alternatives, and identify the environmentally 
preferable alternative or alternatives. Agencies shall write the 
summary in plain language and should use, as relevant, appropriate 
visual aids and charts. The summary normally should not exceed 15 
pages.


Sec.  1502.13  Purpose and need.

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


Sec.  1502.14  Alternatives including the proposed action.

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


Sec.  1502.15  Affected environment.

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


Sec.  1502.16  Environmental consequences.

    (a) The environmental consequences section forms the scientific and 
analytic basis for the comparisons under Sec.  1502.14. It shall 
consolidate the discussions of those elements required by sections 
102(2)(C)(i), (ii), (iv), and (v) of NEPA that are within the scope of 
the environmental impact statement and as much of section 
102(2)(C)(iii) of NEPA as is necessary to support the comparisons. The 
comparison of the proposed action and reasonable alternatives shall be 
based on the discussion of their reasonably foreseeable effects and the 
significance of those effects (Sec.  1501.3 of this subchapter), 
focusing on the significant or important effects. The no action 
alternative should serve as the baseline

[[Page 35566]]

against which the proposed action and other alternatives are compared. 
This section should not duplicate discussions required by Sec.  1502.14 
and shall include an analysis of:
    (1) Any adverse environmental effects that cannot be avoided should 
the proposal be implemented.
    (2) The effects of the no action alternative, including any adverse 
environmental effects;
    (3) The relationship between short-term uses of the human 
environment and the maintenance and enhancement of long-term 
productivity;
    (4) Any irreversible or irretrievable commitments of Federal 
resources that would be involved in the proposal should it be 
implemented;
    (5) Where applicable, possible conflicts between the proposed 
action and the objectives of Federal, regional, State, Tribal, and 
local plans, policies, and controls for the area concerned, including 
those addressing climate change (Sec.  1506.2(d) of this subchapter);
    (6) Where applicable, climate change-related effects, including, 
where feasible, quantification of greenhouse gas emissions, from the 
proposed action and alternatives and the effects of climate change on 
the proposed action and alternatives;
    (7) Where applicable, energy requirements and conservation 
potential of various alternatives and mitigation measures;
    (8) Where applicable, natural or depletable resource requirements 
and conservation potential of various alternatives and mitigation 
measures;
    (9) Where applicable, relevant risk reduction, resiliency, or 
adaptation measures incorporated into the proposed action or 
alternatives, informed by relevant science and data on the affected 
environment and expected future conditions;
    (10) Where applicable, urban quality, historic and cultural 
resources, and the design of the built environment, including the reuse 
and conservation potential of various alternatives and mitigation 
measures;
    (11) Means to mitigate adverse environmental effects (if not fully 
covered under Sec.  1502.14(e));
    (12) Where applicable, economic and technical considerations, 
including the economic benefits of the proposed action; and
    (13) Where applicable, disproportionate and adverse human health 
and environmental effects on communities with environmental justice 
concerns.
    (b) Economic or social effects by themselves do not require 
preparation of an environmental impact statement. However, when the 
agency determines that economic or social and natural or physical 
environmental effects are interrelated, the environmental impact 
statement shall discuss these effects on the human environment.


Sec.  1502.17  Summary of scoping information.

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


Sec.  1502.18  List of preparers.

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


Sec.  1502.19  Appendix.

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


Sec.  1502.20  Publication of the environmental impact statement.

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


Sec.  1502.21  Incomplete or unavailable information.

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

[[Page 35567]]

effects that have catastrophic consequences, even if their probability 
of occurrence is low, provided that the analysis of the effects is 
supported by credible scientific evidence, is not based on pure 
conjecture, and is within the rule of reason.


Sec.  1502.22  Cost-benefit analysis.

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


Sec.  1502.23  [Reserved]


Sec.  1502.24  Environmental review and consultation requirements.

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

PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS

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

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


Sec.  1503.1  Inviting comments and requesting information and 
analyses.

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


Sec.  1503.2  Duty to comment.

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


Sec.  1503.3  Specificity of comments and information.

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


Sec.  1503.4  Response to comments.

    (a) An agency preparing a final environmental impact statement 
shall consider substantive comments timely submitted during the public 
comment period. The agency shall respond to individual comments or 
groups of comments. In the final environmental impact statement, the 
agency may respond by:
    (1) Modifying alternatives including the proposed action;
    (2) Developing and evaluating alternatives not previously given 
serious consideration by the agency;
    (3) Supplementing, improving, or modifying its analyses;

[[Page 35568]]

    (4) Making factual corrections; or
    (5) Explaining why the comments do not warrant further agency 
response, recognizing that agencies are not required to respond to each 
comment.
    (b) An agency shall append or otherwise publish all substantive 
comments received on the draft statement (or summaries thereof where 
the response has been exceptionally voluminous).
    (c) If changes in response to comments are minor and are confined 
to the responses described in paragraphs (a)(4) and (5) of this 
section, an agency may write any changes on errata sheets and attach 
the responses to the statement instead of rewriting the draft 
statement. In such cases, the agency shall publish the final statement 
(Sec.  1502.20 of this subchapter), which includes the errata sheet, a 
copy of the draft statement, the comments, and the responses to those 
comments. The agency shall file the final statement with the 
Environmental Protection Agency (Sec.  1506.10 of this subchapter).

PART 1504--DISPUTE RESOLUTION AND PRE-DECISIONAL REFERRALS

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

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


Sec.  1504.1  Purpose.

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


Sec.  1504.2  Early dispute resolution.

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


Sec.  1504.3  Criteria and procedure for referrals and response.

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

[[Page 35569]]

alternative, further study, or other course of action (including 
abandonment of the matter) are necessary to remedy the situation.
    (e) No later than 25 days after the referral to the Council, the 
lead agency may deliver a response to the Council and the referring 
agency. If the lead agency requests more time and gives assurance that 
the matter will not go forward in the interim, the Council may grant an 
extension. The response shall:
    (1) Address fully the issues raised in the referral;
    (2) Be supported by evidence and explanations, as appropriate; and
    (3) Give the lead agency's response to the referring agency's 
recommendations.
    (f) Applicants or other interested persons may provide views in 
writing to the Council no later than the response.
    (g) No later than 25 days after receipt of both the referral and 
any response or upon being informed that there will be no response 
(unless the lead agency agrees to a longer time), the Council may take 
one or more of the following actions:
    (1) Conclude that the process of referral and response has 
successfully resolved the problem.
    (2) Initiate discussions with the agencies with the objective of 
mediation with referring and lead agencies.
    (3) Obtain additional views and information, including through 
public meetings or hearings.
    (4) Determine that the issue is not one of national importance and 
request the referring and lead agencies to pursue their decision 
process.
    (5) Determine that the referring and lead agencies should further 
negotiate the issue, and the issue is not appropriate for Council 
consideration until one or more heads of agencies report to the Council 
that the agencies' disagreements are irreconcilable.
    (6) Publish its findings and recommendations (including, where 
appropriate, a finding that the submitted evidence does not support the 
position of an agency).
    (7) When appropriate, submit the referral and the response together 
with the Council's recommendation to the President for action.
    (h) The Council shall take no longer than 60 days to complete the 
actions specified in paragraph (g)(2), (3), or (5) of this section.
    (i) The referral process is not intended to create any private 
rights of action or to be judicially reviewable because any voluntary 
resolutions by the agency parties do not represent final agency action 
and instead are only provisional and dependent on later consistent 
action by the action agencies.

PART 1505--NEPA AND AGENCY DECISION MAKING

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

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


Sec.  1505.1  [Reserved]


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

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


Sec.  1505.3  Implementing the decision.

    (a) In addition to the requirements of paragraph (c) of this 
section, agencies may provide for monitoring to assure that their 
decisions are carried out and should do so in important cases. 
Mitigation (Sec.  1505.2(c)) and other conditions established in the 
environmental impact statement or during its review and committed as 
part of the decision shall be implemented by the lead agency or other 
appropriate consenting agency. The agency shall:
    (1) Include appropriate conditions in grants, permits, or other 
approvals; and
    (2) Condition funding of actions on mitigation.
    (b) The lead or cooperating agency should, where relevant and 
appropriate, incorporate into its decision mitigation measures that 
address or ameliorate significant human health and environmental 
effects of proposed Federal actions that disproportionately and 
adversely affect communities with environmental justice concerns.
    (c) The lead or cooperating agency shall prepare and publish a 
monitoring and compliance plan for mitigation when:
    (1) The analysis of the reasonably foreseeable effects of a 
proposed action in an environmental assessment or environmental impact 
statement is based on implementation of mitigation; and
    (2) The agency incorporates the mitigation into a record of 
decision, finding of no significant impact, or separate decision 
document.
    (d) The agency should tailor the contents of a monitoring and 
compliance plan required by paragraph (c) of this section to the 
complexity of the mitigation committed to and include:
    (1) A basic description of the mitigation measure or measures;
    (2) The parties responsible for monitoring and implementing the 
mitigation;
    (3) If appropriate, how monitoring information will be made 
publicly available;
    (4) The anticipated timeframe for implementing and completing 
mitigation;
    (5) The standards for determining compliance with the mitigation 
and the consequences of non-compliance; and
    (6) How the mitigation will be funded.
    (e) If an action is incomplete or ongoing, an agency does not need 
to supplement its environmental impact statement (Sec.  1502.9(d) of 
this subchapter) or environmental assessment (Sec.  1501.5 of this 
subchapter) or revise its record of decision or finding of no 
significant impact or separate decision document based solely on new 
information developed through a monitoring and compliance plan required 
by paragraph (c) of this section. The ongoing implementation of a 
monitoring and compliance plan shall not be considered an incomplete or 
ongoing Federal action.

[[Page 35570]]

PART 1506--OTHER REQUIREMENTS OF NEPA

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

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


Sec.  1506.1  Limitations on actions during NEPA process.

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


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

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


Sec.  1506.3  Adoption.

    (a) Generally. An agency may adopt a draft or final environmental 
impact statement, environmental assessment, or portion thereof, or 
categorical exclusion determination, consistent with this section.
    (b) Environmental impact statements. An agency may adopt another 
agency's draft or final environmental impact statement, or portion 
thereof, provided that the adopting agency conducts an independent 
review of the statement and concludes that it meets the standards for 
an adequate statement, pursuant to the regulations in this subchapter 
and the adopting agency's NEPA procedures.
    (1) If the actions covered by the original environmental impact 
statement and the proposed action are substantially the same, the 
adopting agency shall republish and file it as a final statement 
consistent with Sec.  1506.9. If the actions are not substantially the 
same or the adopting agency determines that the statement may require 
supplementation consistent with Sec.  1502.9 of this subchapter, the 
adopting agency shall treat the statement as a draft, supplement or 
reevaluate it as necessary, and republish and file it, consistent with 
Sec.  1506.9.
    (2) Notwithstanding paragraph (b)(1) of this section, if a 
cooperating agency does not issue a record of decision jointly or 
concurrently consistent with Sec.  1505.2 of this subchapter, a 
cooperating agency may issue a record of decision adopting the 
environmental impact statement of a lead agency without republication.
    (c) Environmental assessments. An agency may adopt another agency's 
environmental assessment, or portion thereof, if the actions covered by 
the original environmental assessment and the proposed action are 
substantially the same, and the assessment meets the standards for an 
adequate environmental assessment under the regulations in this 
subchapter and the adopting agency's NEPA procedures. If the actions 
are not substantially the

[[Page 35571]]

same or the adopting agency determines that the environmental 
assessment may require supplementation consistent with Sec.  1501.5(h) 
of this subchapter, the adopting agency may adopt and supplement or 
reevaluate the environmental assessment as necessary, issue its finding 
of no significant impact, and provide notice consistent with Sec.  
1501.6 of this subchapter.
    (d) Categorical exclusion determinations. An agency may adopt 
another agency's determination that a categorical exclusion applies to 
a particular proposed action if the action covered by that 
determination and the adopting agency's proposed action are 
substantially the same. In such circumstances, the adopting agency 
shall:
    (1) Document its adoption, including the determination that its 
proposed action is substantially the same as the action covered by the 
original categorical exclusion determination and that there are no 
extraordinary circumstances present that require the preparation of an 
environmental assessment or environmental impact statement; and
    (2) Publish its adoption determination on an agency website or 
otherwise make it publicly available.
    (e) Identification of certain circumstances. The adopting agency 
shall specify if one of the following circumstances is present:
    (1) The agency is adopting an environmental assessment or 
environmental impact statement that is not final within the agency that 
prepared it.
    (2) The action assessed in the environmental assessment or 
environmental impact statement is the subject of a referral under part 
1504 of this subchapter.
    (3) The environmental assessment or environmental impact 
statement's adequacy is the subject of a judicial action that is not 
final.


Sec.  1506.4  Combining documents.

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


Sec.  1506.5  Agency responsibility for environmental documents.

    (a) Agency responsibility. The agency is responsible for the 
accuracy, scope (Sec.  1501.3(b) of this subchapter), and content of 
environmental documents and shall ensure they are prepared with 
professional and scientific integrity, using reliable data and 
resources, regardless of whether they are prepared by the agency or a 
contractor under the supervision and direction of the agency or by the 
applicant under procedures the agency adopts pursuant to section 107(f) 
of NEPA and Sec.  1507.3(c)(12) of this subchapter. The agency shall 
exercise its independent judgment and briefly document its 
determination that an environmental document meets the standards under 
NEPA, the regulations in this subchapter, and the agency's NEPA 
procedures.
    (b) Applicant-provided information. An agency may require an 
applicant to submit environmental information for possible use by the 
agency in preparing an environmental document.
    (1) The agency should assist the applicant by outlining the types 
of information required for the preparation of environmental documents.
    (2) The agency shall independently evaluate the information 
submitted by the applicant and, to the extent it is integrated into the 
environmental document, shall be responsible for its accuracy, scope, 
and contents.
    (3) An agency may allow an applicant to prepare environmental 
assessments and environmental impact statements pursuant to its agency 
procedures, consistent with section 107(f) of NEPA and Sec.  
1507.3(c)(12) of this subchapter.
    (c) Agency-directed contractor. An agency may authorize a 
contractor to prepare an environmental document under the supervision 
and direction of the agency.
    (1) The agency shall provide guidance to the contractor and 
participate in and supervise the environmental document's preparation.
    (2) The agency shall independently evaluate the environmental 
document prepared by the agency-directed contractor, shall be 
responsible for its accuracy, scope, and contents, and document the 
agency's evaluation in the environmental document.
    (3) The agency shall include in the environmental document the 
names and qualifications of the persons preparing environmental 
documents, and conducting the independent evaluation of any information 
submitted or environmental documents prepared by a contractor, such as 
in the list of preparers for environmental impact statements (Sec.  
1502.18 of this subchapter). It is the intent of this paragraph (c)(3) 
that acceptable work not be redone, but that it be verified by the 
agency.
    (4) The lead agency or, where appropriate, a cooperating agency 
shall prepare a disclosure statement for the contractor's execution 
specifying that the contractor has no financial or other interest in 
the outcome of the action. Such statement need not include privileged 
or confidential trade secrets or other confidential business 
information.
    (d) Information generally. Nothing in this section is intended to 
prohibit an agency from requesting any person, including the applicant, 
to submit information to it or to prohibit any person from submitting 
information to an agency for use in preparing environmental documents.


Sec.  1506.6  Methodology and scientific accuracy.

    (a) Agencies shall ensure the professional integrity, including 
scientific integrity, of the discussions and analyses in environmental 
documents.
    (b) In preparing environmental documents, agencies shall use high-
quality information, including reliable data and resources, models, and 
Indigenous Knowledge. Agencies may rely on existing information as well 
as information obtained to inform the analysis. Agencies may use any 
reliable data sources, such as remotely gathered information or 
statistical models. Agencies shall explain any relevant assumptions or 
limitations of the information or the particular model or methodology 
selected for use.
    (c) Agencies shall identify any methodologies used and shall make 
explicit reference to the scientific and other sources relied upon for 
conclusions in the environmental document. Agencies may place 
discussion of methodology in an appendix.
    (d) Where appropriate, agencies shall use projections when 
evaluating the reasonably foreseeable effects, including climate 
change-related effects. Such projections may employ mathematical or 
other models that project a range of possible future outcomes, so long 
as agencies disclose the relevant assumptions or limitations.


Sec.  1506.7  Further guidance.

    (a) The Council may provide further guidance concerning NEPA and 
its procedures.
    (b) To the extent that Council guidance issued prior to July 1, 
2024 is in conflict with this subchapter, the provisions of this 
subchapter apply.


Sec.  1506.8  Proposals for legislation.

    (a) When developing legislation, agencies shall integrate the NEPA 
process for proposals for legislation significantly affecting the 
quality of the human environment with the legislative process of the 
Congress. Technical drafting assistance does not by itself

[[Page 35572]]

constitute a legislative proposal. Only the agency that has primary 
responsibility for the subject matter involved will prepare a 
legislative environmental impact statement.
    (b) A legislative environmental impact statement is the detailed 
statement required by law to be included in an agency's recommendation 
or report on a legislative proposal to Congress. A legislative 
environmental impact statement shall be considered part of the formal 
transmittal of a legislative proposal to Congress; however, it may be 
transmitted to Congress up to 30 days later to allow time for 
completion of an accurate statement that can serve as the basis for 
public and Congressional debate. The statement must be available in 
time for Congressional hearings and deliberations.
    (c) Preparation of a legislative environmental impact statement 
shall conform to the requirements of the regulations in this 
subchapter, except as follows:
    (1) There need not be a scoping process.
    (2) Agencies shall prepare the legislative statement in the same 
manner as a draft environmental impact statement and need not prepare a 
final statement unless any of the following conditions exist. In such 
cases, the agency shall prepare and publish the statements consistent 
with Sec. Sec.  1503.1 of this subchapter and 1506.10:
    (i) A Congressional committee with jurisdiction over the proposal 
has a rule requiring both draft and final environmental impact 
statements.
    (ii) The proposal results from a study process required by statute 
(such as those required by the Wild and Scenic Rivers Act (16 U.S.C. 
1271 et seq.)).
    (iii) Legislative approval is sought for Federal or federally 
assisted construction or other projects that the agency recommends be 
located at specific geographic locations. For proposals requiring an 
environmental impact statement for the acquisition of space by the 
General Services Administration, a draft statement shall accompany the 
Prospectus or the 11(b) Report of Building Project Surveys to the 
Congress, and a final statement shall be completed before site 
acquisition.
    (iv) The agency decides to prepare draft and final statements.
    (d) Comments on the legislative statement shall be given to the 
lead agency, which shall forward them along with its own responses to 
the Congressional committees with jurisdiction.


Sec.  1506.9  Filing requirements.

    (a) Agencies shall file environmental impact statements together 
with comments and responses with the Environmental Protection Agency, 
Office of Federal Activities, consistent with the Environmental 
Protection Agency's procedures.
    (b) Agencies shall file statements with the Environmental 
Protection Agency no earlier than they are also transmitted to 
participating agencies and made available to the public. The 
Environmental Protection Agency may issue guidelines to agencies to 
implement its responsibilities under this section and Sec.  1506.10.
    (c) Agencies shall file an adoption of an environmental impact 
statement with the Environmental Protection Agency (see Sec.  
1506.3(b)(1)).


Sec.  1506.10  Timing of agency action.

    (a) The Environmental Protection Agency shall publish a notice in 
the Federal Register each week of the environmental impact statements 
filed since its prior notice. The minimum time periods set forth in 
this section are calculated from the date of publication of this 
notice.
    (b) Unless otherwise provided by law, including statutory 
provisions for combining a final environmental impact statement and 
record of decision, Federal agencies shall not make or issue a record 
of decision under Sec.  1505.2 of this subchapter for the proposed 
action until the later of the following dates:
    (1) 90 days after publication of the notice described in paragraph 
(a) of this section for a draft environmental impact statement.
    (2) 30 days after publication of the notice described in paragraph 
(a) of this section for a final environmental impact statement.
    (c) An agency may make an exception to the rule on timing set forth 
in paragraph (b) of this section for a proposed action in the following 
circumstances:
    (1) Some agencies have formally established administrative review 
processes (e.g., appeals, objections, protests), which may be initiated 
prior to or after filing and publication of the final environmental 
impact statement with the Environmental Protection Agency, that allow 
other agencies or the public to raise issues about a decision and make 
their views known. In such cases where a real opportunity exists to 
alter the decision, the agency may make and record the decision at the 
same time it publishes the environmental impact statement. This means 
that the period for administrative review of the decision and the 30-
day period set forth in paragraph (b)(2) of this section may run 
concurrently. In such cases, the environmental impact statement shall 
explain the timing and the public's right of administrative review and 
provide notification consistent with Sec.  1506.9; or
    (2) An agency engaged in rulemaking under the Administrative 
Procedure Act or other statute for the purpose of protecting the public 
health or safety may waive the time period in paragraph (b)(2) of this 
section, publish a decision on the final rule simultaneously with 
publication of the notice of the availability of the final 
environmental impact statement, and provide notification consistent 
with Sec.  1506.9, as described in paragraph (a) of this section.
    (d) If an agency files the final environmental impact statement 
within 90 days of the filing of the draft environmental impact 
statement with the Environmental Protection Agency, the minimum 30-day 
and 90-day periods may run concurrently. However, subject to paragraph 
(e) of this section, agencies shall allow at least 45 days for comments 
on draft statements.
    (e) The lead agency may extend the minimum periods in paragraph (b) 
of this section and provide notification consistent with Sec.  1506.9. 
Upon a showing by the lead agency of compelling reasons of national 
policy, the Environmental Protection Agency may reduce the minimum 
periods and, upon a showing by any other Federal agency of compelling 
reasons of national policy, also may extend the minimum periods, but 
only after consultation with the lead agency. The lead agency may 
modify the minimum periods when necessary to comply with other specific 
statutory requirements (Sec.  1507.3(d)(4) of this subchapter). Failure 
to file timely comments shall not be a sufficient reason for extending 
a period. If the lead agency does not concur with the extension of 
time, the Environmental Protection Agency may not extend it for more 
than 30 days. When the Environmental Protection Agency reduces or 
extends any period it shall notify the Council.


Sec.  1506.11  Emergencies.

    Where emergency circumstances make it necessary to take an action 
with significant effects without observing the provisions of the 
regulations in this subchapter, the Federal agency taking the action 
shall consult with the Council about alternative arrangements for 
compliance with section 102(2)(C) of NEPA. Agencies and the Council 
shall limit such arrangements to actions necessary to control the 
immediate impacts of the emergency; other actions

[[Page 35573]]

remain subject to NEPA review consistent with this subchapter. 
Alternative arrangements do not waive the requirement to comply with 
the statute, but establish an alternative means for NEPA compliance.


Sec.  1506.12  Effective date.

    The regulations in this subchapter apply to any NEPA process begun 
after July 1, 2024. An agency may apply the regulations in this 
subchapter to ongoing activities and environmental documents begun 
before July 1, 2024.

PART 1507--AGENCY COMPLIANCE

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

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


Sec.  1507.1  Compliance.

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


Sec.  1507.2  Agency capability to comply.

    Each agency shall be capable (in terms of personnel and other 
resources) of complying with the requirements of NEPA and the 
regulations in this subchapter. Such compliance may include use of the 
resources of other agencies, applicants, and other participants in the 
NEPA process, but the agency using the resources shall itself have 
sufficient capability to evaluate what others do for it and account for 
the contributions of others. Agencies shall:
    (a) Designate a senior agency official to be responsible for 
overall review of agency NEPA compliance, including resolving 
implementation issues, and a Chief Public Engagement Officer to be 
responsible for facilitating community engagement in environmental 
reviews across the agency and, where appropriate, the provision of 
technical assistance to communities. When the agency is a department, 
it may be efficient for major subunits (with the consent of the 
department) to identify senior agency officials or Chief Public 
Engagement Officers within those subunits, whom the department-level 
official or Officer oversees.
    (b) Fulfill the requirements of section 102(2)(A) of NEPA to 
utilize a systematic, interdisciplinary approach that will ensure the 
integrated use of the natural and social sciences and the environmental 
design arts in planning and in decision making that may have an impact 
on the human environment.
    (c) Identify methods and procedures required by section 102(2)(B) 
of NEPA to ensure that presently unquantified environmental amenities 
and values may be given appropriate consideration.
    (d) Prepare adequate environmental impact statements pursuant to 
section 102(2)(C) of NEPA and cooperate on the development of 
environmental impact statements in the areas where the agency has 
jurisdiction by law or special expertise or is authorized to develop 
and enforce environmental standards.
    (e) Ensure environmental documents are prepared with professional 
integrity, including scientific integrity, consistent with section 
102(2)(D) of NEPA.
    (f) Make use of reliable data and resources in carrying out their 
responsibilities under NEPA, consistent with section 102(2)(E) of NEPA.
    (g) Study, develop, and describe technically and economically 
feasible alternatives, consistent with section 102(2)(F) of NEPA.
    (h) Study, develop, and describe alternatives to recommended 
courses of action in any proposal that involves unresolved conflicts 
concerning alternative uses of available resources, consistent with 
section 102(2)(H) of NEPA.
    (i) Comply with the requirement of section 102(2)(K) of NEPA that 
the agency initiate and utilize ecological information in the planning 
and development of resource-oriented projects.
    (j) Fulfill the requirements of sections 102(2)(I), 102(2)(J), and 
102(2)(L), of NEPA, and Executive Order 11514, Protection and 
Enhancement of Environmental Quality, section 2, as amended by 
Executive Order 11991, Relating to Protection and Enhancement of 
Environmental Quality.


Sec.  1507.3  Agency NEPA procedures.

    (a) The Council has determined that the revisions to this 
subchapter as of July 1, 2024 do not affect the validity of categorical 
exclusions contained in agency NEPA procedures as of this date.
    (b) No more than 12 months after July 1, 2024, or 9 months after 
the establishment of an agency, whichever comes later, each agency 
shall develop or revise, as necessary, proposed procedures to implement 
the regulations in this subchapter, facilitate efficient decision 
making, and ensure that the agency makes decisions in accordance with 
the policies and requirements of the Act. When the agency is a 
department, it may be efficient for major subunits (with the consent of 
the department) to adopt their own procedures.
    (1) Each agency shall consult with the Council while developing or 
revising its proposed procedures and before publishing them in the 
Federal Register for comment. Agencies with similar programs should 
consult with each other and the Council to coordinate their procedures, 
especially for programs requesting similar information from applicants.
    (2) Agencies shall provide an opportunity for public review and 
review by the Council for conformity with the Act and the regulations 
in this subchapter before issuing their final procedures. The Council 
shall complete its review within 30 days of the receipt of the proposed 
final procedures. Once in effect, agencies shall publish their NEPA 
procedures and ensure that they are readily available to the public. 
Agencies shall continue to review their policies and procedures, in 
consultation with the Council, and revise them as necessary to ensure 
full compliance with the purposes and provisions of the Act.
    (3) The issuance or update of agency procedures is not subject to 
NEPA review under this subchapter.
    (c) Agency procedures shall:
    (1) Designate the major decision points for the agency's programs 
and actions subject to NEPA, ensuring that the NEPA process begins at 
the earliest reasonable time, consistent with Sec.  1501.2 of this 
subchapter, and aligns with the corresponding decision points;
    (2) Require that relevant environmental documents, comments, and 
responses be part of the record in rulemaking and adjudicatory 
proceedings;
    (3) Integrate the environmental review into the decision-making 
process by requiring that relevant environmental documents, comments, 
and responses accompany the proposal through existing agency review 
processes so that decision makers use them in making decisions;
    (4) Require that the alternatives considered by the decision maker 
are encompassed by the range of alternatives discussed in the relevant 
environmental documents and that the decision maker consider the 
alternatives described in the environmental documents. If another 
decision document accompanies the relevant environmental documents to 
the decision maker, agencies are encouraged

[[Page 35574]]

to make available to the public before the decision is made any part of 
that document that relates to the comparison of alternatives;
    (5) Require the combination of environmental documents with other 
agency documents to facilitate sound and efficient decision making and 
avoid duplication, where consistent with applicable statutory 
requirements;
    (6) Include the procedures required by Sec.  1501.2(b)(4) of this 
subchapter (assistance to applicants);
    (7) Include specific criteria for and identification of those 
typical classes of action that normally:
    (i) Require environmental impact statements; and
    (ii) Require environmental assessments but not necessarily 
environmental impact statements;
    (8) Establish categorical exclusions and identify extraordinary 
circumstances. When establishing new or revising existing categorical 
exclusions, agencies shall:
    (i) Identify when documentation of a determination that a 
categorical exclusion applies to a proposed action is required;
    (ii) Substantiate the proposed new or revised categorical exclusion 
with sufficient information to conclude that the category of actions 
does not have a significant effect, individually or in the aggregate, 
on the human environment and provide this substantiation in a written 
record that is made publicly available as part of the notice and 
comment process (Sec.  1507.3(b)(1) and (2)); and
    (iii) Describe how the agency will consider extraordinary 
circumstances consistent with Sec.  1501.4(b) of this subchapter;
    (9) Include a process for reviewing the agency's categorical 
exclusions at least every 10 years, which the agency may conduct on a 
rolling basis, starting with its oldest categorical exclusions;
    (10) Include processes for reevaluating and supplementing 
environmental assessments and environmental impact statements, as 
appropriate;
    (11) Explain where interested persons can get information or status 
reports on environmental impact statements, environmental assessments, 
and other elements of the NEPA process; and
    (12) Where an agency has applicants that seek its action, include 
procedures to allow an applicant (including an applicant-directed 
contractor) to prepare environmental assessments and environmental 
impact statements under the agency's supervision. Such procedures shall 
not apply to applicants when they serve as joint lead agencies. Such 
procedures shall be consistent with Sec.  1506.5(a) and (c) of this 
subchapter, and at a minimum shall include the following:
    (i) Requirements that the agency review and approve the purpose and 
need (Sec. Sec.  1501.5(c)(2)(i) or 1502.13 of this subchapter) and 
reasonable alternatives (Sec. Sec.  1501.5(c)(2)(ii) or 1502.14 of this 
subchapter);
    (ii) A process for the agency to independently evaluate the 
applicant-prepared environmental assessment or environmental impact 
statement; take responsibility for its accuracy, scope, and contents; 
and document the agency's evaluation in the document; and
    (iii) A prohibition on the preparation of a finding of no 
significant impact or record of decision by applicants.
    (d) Agency procedures also may:
    (1) Identify activities or decisions that are not subject to NEPA;
    (2) Include processes for consideration of emergency actions that 
would not result in significant effects;
    (3) Include specific criteria for providing limited exceptions to 
the provisions of the regulations in this subchapter for classified 
proposals. These are proposed actions that are specifically authorized 
under criteria established by an Executive order or statute to be kept 
secret in the interest of national defense or foreign policy and are in 
fact properly classified pursuant to such Executive order or statute. 
Agencies may safeguard and restrict from public dissemination 
environmental assessments and environmental impact statements that 
address classified proposals in accordance with agencies' own 
regulations applicable to classified information. Agencies should 
organize these documents so that classified portions are included as 
annexes, so that the agencies can make the unclassified portions 
available to the public; and
    (4) Provide for periods of time other than those presented in Sec.  
1506.10 of this subchapter when necessary to comply with other specific 
statutory requirements, including requirements of lead or cooperating 
agencies.


Sec.  1507.4  Agency NEPA program information.

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

PART 1508--DEFINITIONS

Sec.
1508.1 Definitions.
1508.2 [Reserved]

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


Sec.  1508.1  Definitions.

    The following definitions apply to the regulations in this 
subchapter. Federal agencies shall use these terms uniformly throughout 
the Federal Government.
    (a) Act or NEPA means the National Environmental Policy Act, as 
amended (42 U.S.C. 4321, et seq.).
    (b) Affecting means will or may have an effect on.
    (c) Applicant means a non-Federal entity, including a project 
sponsor, that seeks an action by a Federal agency such as granting a 
permit, license, or financial assistance.
    (d) Authorization means any license, permit, approval, finding, 
determination, or other administrative decision issued by an agency 
that is required or authorized under Federal law in order to implement 
a proposed action.
    (e) Categorical exclusion means a category of actions that an 
agency has determined, in its agency NEPA

[[Page 35575]]

procedures (Sec.  1507.3 of this subchapter) or pursuant to Sec.  
1501.4(c) of this subchapter, normally does not have a significant 
effect on the human environment.
    (f) Communities with environmental justice concerns means those 
communities that may not experience environmental justice as defined in 
paragraph (m) of this section. To assist in identifying communities 
with environmental justice concerns, agencies may use available 
screening tools, such as the Climate and Economic Justice Screening 
Tool and the EJScreen Tool, as appropriate to their activities and 
programs. Agencies also may develop procedures for the identification 
of such communities in their agency NEPA procedures.
    (g) Cooperating agency means any Federal, State, Tribal, or local 
agency with jurisdiction by law or special expertise with respect to 
any environmental impact involved in a proposal that has been 
designated by the lead agency.
    (h) Council means the Council on Environmental Quality established 
by title II of the Act.
    (i) Effects or impacts means changes to the human environment from 
the proposed action or alternatives that are reasonably foreseeable and 
include the following:
    (1) Direct effects, which are caused by the action and occur at the 
same time and place.
    (2) Indirect effects, which are caused by the action and are later 
in time or farther removed in distance, but are still reasonably 
foreseeable. Indirect effects may include growth-inducing effects and 
other effects related to induced changes in the pattern of land use, 
population density or growth rate, and related effects on air and water 
and other natural systems, including ecosystems.
    (3) Cumulative effects, which are effects on the environment that 
result from the incremental effects of the action when added to the 
effects of other past, present, and reasonably foreseeable actions 
regardless of what agency (Federal or non-Federal) or person undertakes 
such other actions. Cumulative effects can result from actions with 
individually minor but collectively significant effects taking place 
over a period of time.
    (4) Effects include ecological (such as the effects on natural 
resources and on the components, structures, and functioning of 
affected ecosystems), aesthetic, historic, cultural, economic, social, 
or health, such as disproportionate and adverse effects on communities 
with environmental justice concerns, whether direct, indirect, or 
cumulative. Effects also include effects on Tribal resources and 
climate change-related effects, including the contribution of a 
proposed action and its alternatives to climate change, and the 
reasonably foreseeable effects of climate change on the proposed action 
and its alternatives. Effects may also include those resulting from 
actions which may have both beneficial and adverse effects, even if on 
balance the agency believes that the effects will be beneficial.
    (j) Environmental assessment means a concise public document, for 
which a Federal agency is responsible, for an action that is not likely 
to have a significant effect or for which the significance of the 
effects is unknown (Sec.  1501.5 of this subchapter), that is used to 
support an agency's determination of whether to prepare an 
environmental impact statement (part 1502 of this subchapter) or a 
finding of no significant impact (Sec.  1501.6 of this subchapter).
    (k) Environmental document means an environmental assessment, 
environmental impact statement, documented categorical exclusion 
determination, finding of no significant impact, record of decision, or 
notice of intent.
    (l) Environmental impact statement means a detailed written 
statement that is required by section 102(2)(C) of NEPA.
    (m) Environmental justice means the just treatment and meaningful 
involvement of all people, regardless of income, race, color, national 
origin, Tribal affiliation, or disability, in agency decision making 
and other Federal activities that affect human health and the 
environment so that people:
    (1) Are fully protected from disproportionate and adverse human 
health and environmental effects (including risks) and hazards, 
including those related to climate change, the cumulative impacts of 
environmental and other burdens, and the legacy of racism or other 
structural or systemic barriers; and
    (2) Have equitable access to a healthy, sustainable, and resilient 
environment in which to live, play, work, learn, grow, worship, and 
engage in cultural and subsistence practices.
    (n) Environmentally preferable alternative means the alternative or 
alternatives that will best promote the national environmental policy 
as expressed in section 101 of NEPA.
    (o) Extraordinary circumstances means factors or circumstances that 
indicate a normally categorically excluded action may have a 
significant effect. Examples of extraordinary circumstances include 
potential substantial effects on sensitive environmental resources; 
potential substantial disproportionate and adverse effects on 
communities with environmental justice concerns; potential substantial 
effects associated with climate change; and potential substantial 
effects on historic properties or cultural resources.
    (p) Federal agency means all agencies of the Federal Government. It 
does not mean the Congress, the Judiciary, or the President, including 
the performance of staff functions for the President in his Executive 
Office. For the purposes of the regulations in this subchapter, Federal 
agency also includes States, units of general local government, and 
Tribal governments assuming NEPA responsibilities from a Federal agency 
pursuant to statute.
    (q) Finding of no significant impact means a document by a Federal 
agency briefly presenting the agency's determination that and reasons 
why an action, not otherwise categorically excluded (Sec.  1501.4 of 
this subchapter), will not have a significant effect on the human 
environment and for which an environmental impact statement therefore 
will not be prepared.
    (r) Human environment or environment means comprehensively the 
natural and physical environment and the relationship of present and 
future generations with that environment. (See also the definition of 
``effects'' in paragraph (i) of this section.)
    (s) Joint lead agency means a Federal, State, Tribal, or local 
agency designated pursuant to Sec.  1501.7(c) that shares the 
responsibilities of the lead agency for preparing the environmental 
impact statement or environmental assessment.
    (t) Jurisdiction by law means agency authority to approve, veto, or 
finance all or part of the proposal.
    (u) Lead agency means the Federal agency that proposes the agency 
action or is designated pursuant to Sec.  1501.7(c) for preparing or 
having primary responsibility for preparing the environmental impact 
statement or environmental assessment.
    (v) Legislation means a bill or legislative proposal to Congress 
developed by a Federal agency, but does not include requests for 
appropriations or legislation recommended by the President.
    (w) Major Federal action or action means an action that the agency 
carrying out such action determines is subject to substantial Federal 
control and responsibility.

[[Page 35576]]

    (1) Examples of major Federal actions generally include:
    (i) Granting authorizations, including permits, licenses, rights-
of-way, or other authorizations.
    (ii) Adoption of official policy, such as rules, regulations, and 
interpretations adopted under the Administrative Procedure Act, 5 
U.S.C. 551 et seq., or other statutes; implementation of treaties and 
international conventions or agreements, including those implemented 
pursuant to statute or regulation; formal documents establishing an 
agency's policies that will result in or substantially alter agency 
programs.
    (iii) Adoption of formal plans, such as official documents prepared 
or approved by Federal agencies, which prescribe alternative uses of 
Federal resources, upon which future agency actions will be based.
    (iv) Adoption of programs, such as a group of concerted actions to 
implement a specific policy or plan; systematic and related agency 
decisions allocating agency resources to implement a specific statutory 
program or executive directive.
    (v) Approval of or carrying out specific agency projects, such as 
construction or management activities.
    (vi) Providing more than a minimal amount of financial assistance, 
including through grants, cooperative agreements, loans, loan 
guarantees, or other forms of financial assistance, where the agency 
has the authority to deny in whole or in part the assistance due to 
environmental effects, has authority to impose conditions on the 
receipt of the financial assistance to address environmental effects, 
or otherwise has sufficient control and responsibility over the 
subsequent use of the financial assistance or the effects of the 
activity for which the agency is providing the financial assistance.
    (2) Major Federal actions do not include the following:
    (i) Non-Federal actions:
    (A) With no or minimal Federal funding; or
    (B) With no or minimal Federal involvement where the Federal agency 
cannot control the outcome of the project;
    (ii) Funding assistance solely in the form of general revenue 
sharing funds that do not provide Federal agency compliance or 
enforcement responsibility over the subsequent use of such funds;
    (iii) Loans, loan guarantees, or other forms of financial 
assistance where a Federal agency does not exercise sufficient control 
and responsibility over the subsequent use of such financial assistance 
or the effects of the action;
    (iv) Business loan guarantees provided by the Small Business 
Administration pursuant to section 7(a) or (b) and of the Small 
Business Act (15 U.S.C. 636(a) and (b)), or title V of the Small 
Business Investment Act of 1958 (15 U.S.C. 695 through 697g);
    (v) Judicial or administrative civil or criminal enforcement 
actions;
    (vi) Extraterritorial activities or decisions, which means agency 
activities or decisions with effects located entirely outside of the 
jurisdiction of the United States;
    (vii) Activities or decisions that are non-discretionary and made 
in accordance with the agency's statutory authority; and
    (viii) Activities or decisions for projects approved by a Tribal 
Nation that occur on or involve land held in trust or restricted status 
by the United States for the benefit of that Tribal Nation or by the 
Tribal Nation when such activities or decisions involve no or minimal 
Federal funding or other Federal involvement.
    (x) Matter means for purposes of part 1504 of this subchapter:
    (1) With respect to the Environmental Protection Agency, any 
proposed legislation, project, action, or regulation as those terms are 
used in section 309(a) of the Clean Air Act (42 U.S.C. 7609).
    (2) With respect to all other agencies, any proposed major Federal 
action to which section 102(2)(C) of NEPA applies.
    (y) Mitigation means measures that avoid, minimize, or compensate 
for adverse effects caused by a proposed action or alternatives as 
described in an environmental document or record of decision and that 
have a connection to those adverse effects. Mitigation includes, in 
general order of priority:
    (1) Avoiding the adverse effect altogether by not taking a certain 
action or parts of an action.
    (2) Minimizing the adverse effect by limiting the degree or 
magnitude of the action and its implementation.
    (3) Rectifying the adverse effect by repairing, rehabilitating, or 
restoring the affected environment.
    (4) Reducing or eliminating the adverse effect over time by 
preservation and maintenance operations during the life of the action.
    (5) Compensating for the adverse effect by replacing or providing 
substitute resources or environments.
    (z) NEPA process means all measures necessary for compliance with 
the requirements of section 2 and title I of NEPA.
    (aa) Notice of intent means a public notice that an agency will 
prepare and consider an environmental impact statement or, as 
applicable, an environmental assessment.
    (bb) Page means 500 words and does not include citations, 
explanatory maps, diagrams, graphs, tables, and other means of 
graphically displaying quantitative or geospatial information.
    (cc) Participating agency means a Federal, State, Tribal, or local 
agency participating in an environmental review or authorization of an 
action.
    (dd) Participating Federal agency means a Federal agency 
participating in an environmental review or authorization of an action.
    (ee) Programmatic environmental document means an environmental 
impact statement or environmental assessment analyzing all or some of 
the environmental effects of a policy, program, plan, or group of 
related actions.
    (ff) Proposal means a proposed action at a stage when an agency has 
a goal, is actively preparing to make a decision on one or more 
alternative means of accomplishing that goal, and can meaningfully 
evaluate its effects. A proposal may exist in fact as well as by agency 
declaration that one exists.
    (gg) Publish and publication mean methods found by the agency to 
efficiently and effectively make environmental documents and 
information available for review by interested persons, including 
electronic publication, and adopted by agency NEPA procedures pursuant 
to Sec.  1507.3 of this subchapter.
    (hh) Reasonable alternatives means a reasonable range of 
alternatives that are technically and economically feasible, and meet 
the purpose and need for the proposed action.
    (ii) Reasonably foreseeable means sufficiently likely to occur such 
that a person of ordinary prudence would take it into account in 
reaching a decision.
    (jj) Referring agency means the Federal agency that has referred 
any matter to the Council after a determination that the matter is 
unsatisfactory from the standpoint of public health or welfare or 
environmental quality.
    (kk) Scope consists of the range and breadth of actions, 
alternatives, and effects to be considered in an environmental impact 
statement or environmental assessment.
    (ll) Senior agency official means an official of assistant 
secretary rank or higher (or equivalent) that is designated for overall 
agency NEPA compliance, including resolving implementation issues.
    (mm) Significant effects means adverse effects that an agency has

[[Page 35577]]

identified as significant based on the criteria in Sec.  1501.3(d) of 
this subchapter.
    (nn) Special expertise means statutory responsibility, agency 
mission, or related program experience.
    (oo) Tiering refers to the process described in Sec.  1501.11 of 
this subchapter by which an environmental document may rely on an 
existing and broader or more general environmental document.


Sec.  1508.2  [Reserved]

[FR Doc. 2024-08792 Filed 4-30-24; 8:45 am]
BILLING CODE 3325-FC-P