[Federal Register Volume 91, Number 125 (Wednesday, July 1, 2026)]
[Rules and Regulations]
[Pages 39879-39895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-13245]
[[Page 39879]]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1216
[NASA Document Number-26-019; NASA Docket Number-NASA-2026-0100]
RIN 2700-AE80
Procedures for Implementing the National Environmental Policy Act
AGENCY: National Aeronautics and Space Administration.
ACTION: Interim final rule; request for comments.
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SUMMARY: The National Aeronautics and Space Administration (NASA) is
rescinding and repromulgating its regulations related to environmental
quality to update the regulations to codify changes to NEPA. NASA has
determined there is good cause to promulgate its revised NEPA
implementing regulations in the form of an interim final rule in order
to avoid confusion related to NASA's administrative process and provide
NASA action proponents, non-Federal project sponsors of proposed
actions, and the public with the procedural certainty required to
efficiently prepare an environmental document under NEPA. Additionally,
this interim final rule updates NASA's list of existing categorical
exclusions.
DATES: This interim final rule is effective August 17, 2026. Comments
are due by July 31, 2026.
ADDRESSES: You may send comments, identified by NASA-2026-0100 to the
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
instructions for sending comments. If access to the website is not
feasible, NASA will receive mailed comments to NASA Rulemaking
Comments--NASA-2026-0100, Environmental Management Division, Suite
2X84, 300 E Street SW, Washington, DC 20546. As the security screening
process may delay mail sent through the U.S. Postal Service, NASA
encourages electronic submittal directly through the e-Rulemaking
Portal described above. Before including your address, phone number,
email address, or other personally identifiable information (PII) in
your comment, you should be aware that your entire comment, including
your PII, will be posted without change to https://www.regulations.gov.
Do not submit electronically any information you consider to be
private, Confidential Business Information, or other information the
disclosure of which is restricted by statute, as it may be made
publicly available at any time. While you can request to withhold your
PII or other sensitive information from public review as part of the
overall comment submittal, NASA cannot guarantee the execution of such
a request.
FOR FURTHER INFORMATION CONTACT: Nick Murdock,
[email protected]. General information about NASA's NEPA
process is available on the NASA NEPA Portal and NEPA Library at http:/
/www.nasa.gov/emd/nepa.
SUPPLEMENTARY INFORMATION:
I. Background
The NEPA, as amended, 42 U.S.C. 4321 et seq., requires all Federal
agencies to assess the environmental impact of their actions. NEPA does
not mandate results or substantive outcomes, rather, NEPA requires
Federal agencies to consider the environmental effects of proposed
actions as part of that agency's decision-making processes. Seven
County Infrastructure Coalition v. Eagle County, Colorado, 605 U.S.
168, 180 (2025) NEPA provides requirements to facilitate timely and
unified Federal reviews, including provisions clarifying lead, joint
lead, and cooperating agency designations; generally requiring the
development of a single environmental document; directing agencies to
develop procedures for project sponsors to prepare environmental
assessments and environmental impact statements; and prescribing page
limits and deadlines. 42 U.S.C. 4336a. NEPA also sets forth the
circumstances under which agencies may rely on programmatic
environmental documents, 42 U.S.C. 4336b, and adopt and use another
agency's categorical exclusions. 42 U.S.C. 4336c.
NEPA identifies three levels of review--categorical exclusion,
environmental assessment, and environmental impact statement. 42 U.S.C.
4336a. A categorical exclusion is a ``a category of actions that a
federal agency has determined normally does not significantly affect
the quality of the human environment within the meaning of NEPA section
102(2)(C).'' 42 U.S.C. 4336e (1). An environmental assessment is a
``concise'' document ``set[ting] forth the basis of [an] agency's
finding of no significant impact or determination that an environmental
impact statement is necessary,'' prepared in connection with a proposed
agency action that does not have a significant impact, or the
significance of whose impact is unknown. 42 U.S.C. 4336(b)(2). An
environmental impact statement is a document analyzing a proposed
agency action with significant impact, governed by the provisions of 42
U.S.C. 4332(2)(C) and 4336(b)(1). Agencies must prepare an
environmental impact statement--``in essence, a report''--for proposed
``major federal actions significantly affecting the quality of the
human environment.'' 42 U.S.C. 4332(2)(C); Seven County, 605 U.S. at
173. This statement must address: (1) the reasonably foreseeable
environmental effects of the proposed agency action; (2) any reasonably
foreseeable adverse environmental effects that cannot be avoided should
the proposal be implemented; (3) a reasonable range of alternatives to
the proposed agency action, including an analysis of any negative
environmental impacts of not implementing the proposed agency action in
the case of a no action alternative, that are technically and
economically feasible, and meet the purpose and need of the proposal;
(4) the relationship between local short-term uses of man's environment
and the maintenance and enhancement of long-term productivity; and (5)
any irreversible and irretrievable commitments of Federal resources
which would be involved in the proposed action should it be
implemented. 42 U.S.C. 4332(2)(C).
On January 20, 2025, President Donald J. Trump issued Executive
Order (E.O.) 14154, Unleashing American Energy.\1\ E.O. 14154 rescinded
E.O. 11991, Relating to Protection and Enhancement of Environmental
Quality,\2\ which rescinded E.O. 11514, Protection and Enhancement of
Environmental Quality.\3\ E.O. 11514 had directed the CEQ to promulgate
regulations for implementing NEPA and required Federal agencies to
comply with those regulations. On February 25, 2025, CEQ issued an
interim final rule with an effective date of April 11, 2025,\4\
removing its existing NEPA implementing regulations at 40 CFR parts
1500 through 1508 (CEQ regulations), which CEQ adopted as final on
January 8, 2026.\5\ E.O. 14154 also directed CEQ to issue guidance to
Federal departments and agencies on revising their own internal NEPA
implementing procedures (or establish such procedures if not already
established) to expedite permitting approvals and for consistency with
Title I of NEPA.
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\1\ 90 FR 8353 (January 29, 2025).
\2\ 42 FR 26967 (May 24, 1977).
\3\ 35 FR 4247 (March 7, 1970).
\4\ 90 FR 10610.
\5\ 91 FR 618.
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In 2023, Congress added substantial detail and direction in Title I
of NEPA, including on procedural issues that CEQ
[[Page 39880]]
addressed in its regulations and that individual action agencies had
previously addressed in their own NEPA implementing procedures. NASA
recognized the need to update its regulations considering these
significant legislative changes. Since NASA's regulations were
originally written in accordance with CEQ's NEPA implementing
regulations, NASA had been awaiting CEQ action before substantially
revising its regulations,\6\ consistent with CEQ direction. See 40 CFR
1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However, with
CEQ's regulations now rescinded, it is exigent that NASA quickly
conforms its procedures to the statute as amended.
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\6\ NASA updated these NEPA implementing regulations in 2024 to,
among other things, revise and establish categorical exclusions. 89
FR 25497 (April 11, 2024). However, NASA proposed that revision
prior to the enactment of the FRA, the recission of the CEQ's
regulations and the amendment from the OBBBA. See 88 FR 27804 (May
3, 2023). Therefore, the 2024 revision did not comprehensively
address the recent changes and statutory amendments to NEPA.
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Moreover, on May 29, 2025, the Supreme Court issued the landmark
Seven County Infrastructure Coalition decision, in which it decried the
``transform[ation]'' of NEPA from its roots as ``a modest procedural
requirement,'' into a significant ``substantive roadblock'' that
``paralyze[s]'' agency decision making. 605 U.S at 173, 183). The
Supreme Court explained that part of that problem had been caused by
decisions of lower courts, which it rejected, issuing a ``course
correction'' mandating that courts give ``substantial deference'' to
reasonable agency conclusions underlying their NEPA processes. Id. at
180, 184. But the Court also acknowledged, and through its course
correction sought to address, the effect on ``litigation-averse
agencies'' which, considering judicial ``micromanagement,'' had been
``taking ever more time and preparing ever longer environmental impact
statements for future projects.'' Id. at 183.
Additionally, Congress again amended NEPA in 2025 through section
60026 of the One Big Beautiful Bill Act (OBBBA), Public Law 119-21
(July 4, 2025), adding section 112 of NEPA, entitled ``Project Sponsor
Opt-in Fees for Environmental Reviews.'' This provision allows project
sponsors to pay a fee to obtain shortened NEPA review.
NASA's existing NEPA implementing regulations are currently
codified in 14 CFR 1216.3 (Procedures for Implementing the National
Environmental Policy Act). In addition to reflecting the foregoing
changes to the NEPA law and practice, NASA's revised implementing
regulations make the following changes: (1) They incorporate nineteen
previously adopted categorical exclusions from the Federal Rail
Administration (FRA), Department of Energy (DOE), National
Telecommunications and Information Administration (NTIA), U.S. Coast
Guard (USCG), U.S. Forest Service (USFS), U.S. Air Force (USAF),
Department of the Air Force (DAF), Department of the Navy, Missile
Defense Agency (MDA), Defense Threat Reduction Agency (DTRA), and
Federal Bureau of Investigation (FBI). Notices of the NASA adoptions
were published at 89 FR 31772 (Apr. 25, 2024) and 91 FR 7535 (Feb. 18,
2026). (2) They remove two administrative categorical exclusions,
previously listed at Sec. 1216.304(d)(1)(ii) and (v), which fall
outside NEPA's definition for major Federal action. (3) They make
conforming administrative changes to 14 CFR part 1216 to accurately
reflect NASA's current environmental policy related to consideration of
the environmental impacts of NASA, or non-Federal project sponsor,
proposed actions.
Since NASA's last NEPA regulatory revision in 2024, NASA's mission,
programs, and strategic goals have remained steadfast and focused on
leading a new era of human space exploration, performing transformative
aeronautics technology research, and continuing to study our planet and
the solar system. The rapid pace of growth of NASA's commercial
partners in the commercial space launch and exploration industry is
driving an expansion of economic activity in Low Earth Orbit, with
sights set on establishing a permanent human presence on the Moon and
Mars. This dynamic space exploration environment dictates that NASA
implements NEPA regulations that streamline the environmental review
process but also ensure accurate and unbiased analysis which decision
makers and the public can rely on.
The regulations in this interim final rule build upon decades of
NASA NEPA experience and seek to better align the regulations with
NASA's evolving technology and mission demands. NASA's NEPA regulations
and policy will continue to be available on NASA's Public Portal at
http://www.nasa.gov/emd/nepa/ (under ``NEPA Process''). Consistent with
section 102(2)(B) of NEPA (42 U.S.C. 4332(2)(B), which directs all
agencies of the Federal Government to identify and develop methods and
procedures, in consultation with CEQ, to conduct the environmental
analysis that NEPA requires, NASA consulted with CEQ throughout the
development of this interim final rule.
II. Introduction
NASA is amending its regulations for implementing the requirements
of NEPA. This revision to NASA's NEPA implementing regulations became
necessary after the CEQ issued an interim final rule rescinding its
NEPA implementing regulations (formerly 40 CFR parts 1500 through 1508)
on February 25, 2025,\7\ which was subsequently finalized on January 8,
2026.\8\ NASA had incorporated CEQ's now-rescinded regulations by
reference into its own NEPA implementing regulations at 14 CFR
1216.300(b). NASA also needed to revise the regulations to conform to
the statutory requirements of NEPA as amended by the FRA and the OBBBA.
In addition, these revisions reflect the Supreme Court's Seven County
decision. The amended regulations help avoid potential confusion by
providing regulatory certainty to NASA project proponents and non-
Federal project sponsors who propose actions on NASA facilities and how
NASA, or in some cases, non-Federal project sponsors, should undertake
preparation of environmental documents that inform both Federal
decision makers and the public on the potential environmental impacts
of NASA and non-Federal project sponsor proposed actions.
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\7\ 90 FR 10610 (Feb. 25, 2025).
\8\ 91 FR 618 (Jan. 8, 2026).
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III. Basis for Issuing an Interim Final Rule
A. Notice and Comment Rulemaking Is Not Required
Notice and comment are not required because this interim final rule
falls within the APA's exception for ``interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice.'' 5 U.S.C. 553(b)(A). The legal authority for NASA to proceed
with this regulatory action is found in the Space Act, 51 U.S.C. 20101
et. seq. Pursuant to 51 U.S.C. 20113, the NASA Administrator is
authorized to ``make, promulgate, issue, rescind, and amend rules and
regulations governing the manner of NASA operations and the exercise of
powers vested in it by law.'' Further, the NEPA statute directs the
Federal Government to ``use all practicable means, consistent with
other essential considerations of national policy, to improve and
coordinate federal plans, functions, programs, and resources'' to
[[Page 39881]]
assure Americans will continue to live in a ``safe, healthful, [and]
productive'' environment (42 U.S.C. 4331(b)). NEPA is a ``purely
procedural statute'' which ``simply prescribes the necessary process
for an agency's environmental review of a project--a review that is,
even in its most rigorous form, ``only one input into an agency's
decision and does not itself require any particular substantive
outcome.'' Seven County, 145 S. Ct. at 1507, 1511 (internal quotation
omitted).
``NEPA imposes no substantive constraints on the agency's ultimate
decision to build, fund, or approve a proposed project,'' and ``is
relevant only to the question of whether an agency's final decision''--
i.e., that decision to authorize, fund, or otherwise carry out a
particular proposed project or activity--``was reasonably explained.''
Id. at 1511. Thus, NASA's regulations implementing NEPA do not dictate
what outcomes such consideration must produce, nor do they impose
binding legal obligations on private citizens. Rather, they prescribe
the procedure by which NASA should conduct its NEPA reviews (e.g.,
detailing the structure of environmental impact statements, specifying
procedural requirements, and directing the timing of public comment
periods).
Although NASA is voluntarily providing notice and an opportunity to
comment on the interim final rule, the agency has determined that
notice and comment procedures are not required because this interim
final rule falls within the APA exception for ``rules of agency
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A).
In addition, NASA's regulations implementing NEPA's procedural
requirements may be characterized as rules of agency organization,
procedure, or practice. NASA's regulations prescribe how NASA action
proponents and non-Federal project sponsors should conduct NEPA
reviews: detailing the administrative process applicable to preparation
of environmental documents. The NASA regulations do not prescribe
substantive environmental policies or command particular outcomes.
Promulgation of rules of agency organization, procedure, or practice
does not require notice and comment. See 5 U.S.C. 553(b)(A).
B. NASA Has Good Cause for Proceeding With an Interim Final Rule
The APA authorizes agencies to issue regulations without notice and
public comment when an agency finds, for good cause, that notice and
comment is ``impracticable, unnecessary, or contrary to the public
interest,'' 5 U.S.C. 553(b)(B). NASA finds that, to the extent that
prior notice and solicitation of public comment would otherwise be
required, the need to expeditiously and unambiguously resolve potential
internal agency mission planner, non-Federal project sponsor, and
public confusion regarding NASA's NEPA implementing procedures
satisfies the ``good cause'' exception in 5 U.S.C. 553(b)(B).
NASA's current NEPA implementing regulations, regulations at 14 CFR
part 1216, ``adopts CEQ's regulations implementing NEPA (40 CFR parts
1500 through 1508) and supplements those regulations.'' 14 CFR
1216.300(b). Thus, NASA's regulations supplement a NEPA paradigm that
no longer exists since the recission of CEQ's regulations. NASA thus
far and as a temporary emergency measure, has been continuing to
operate under its prior procedures as if the CEQ regulations still
existed. This is not, however, tenable for the long term. Now that
proper procedures are available, NASA must rescind its out-of-date
regulations and update to conform to the recent statutory changes.
Because E.O. 14154 rescinded E.O. 11991 and CEQ removed its regulations
at 40 CFR parts 1500 through 1508, this interim final rule is a
necessary but ministerial step to align NASA's regulations with the
current NEPA landscape. Rescinding the current NEPA implementing
regulation without replacing it would create a vacuum that would
inflict immense uncertainty and potentially grind all projects under
NASA's purview to a halt. Therefore, pairing the rescission with a new
structure is critical.
Because of this need for speed and certainty, notice and comment
are, to the extent required at all, impracticable and contrary to the
public interest. To the extent that public comment may suggest further
revisions are warranted, NASA's solicitation of public comment for 30
days following the publication of the rule is intended to accommodate
that possibility. But, to the extent that this interim final rule would
otherwise require a proposal and solicitation of public comment, NASA's
view is that the ``good cause'' exception (5 U.S.C. 553(b)(B)) pertains
here.
Though NASA seeks comments to obtain the public's views, such
comments could not alter the legal realities--most notably the repeal
of the CEQ's NEPA implementing regulations and the rescission of the
E.O. that purported to authorize them, the recission of the CEQ
regulations and the statutory amendment from the OBBBA--that create the
swift need for such a change. NASA will consider comments submitted in
response to this action and address them when issuing a final rule,
with changes, if warranted, after consideration of the comments
received. For these reasons and those above, NASA finds that ``good
cause'' exists under 5 U.S.C. 553(d)(3) to forgo the 30-day delay of
the effective date. Accordingly, this rulemaking will be effective
immediately.
IV. Development Process
After the CEQ issued its Memorandum for Heads of Federal
Departments and Agencies on February 19, 2025, and published an interim
final rule to remove its NEPA implementing regulations (40 CFR parts
1500 through 1508) on February 25, 2025 (effective April 11, 2025),
with final rule on January 8, 2026, NASA formed a working group to
review 14 CFR part 1216, subparts 1216.1 and 1216.3 (subpart 1216.2 is
``reserved'').\9\ The working group was comprised of current NASA
environmental professionals with numerous years of NEPA planning and
compliance history. NASA consulted with the CEQ throughout the
development of this interim final rule to ensure consistency with the
requirements of NEPA, Administration policy, and CEQ guidance and, to
the extent practicable, standardize NEPA's administrative process with
other Executive branch agencies which are engaged in similar regulatory
or policy making actions.
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\9\ CEQ issued Memorandum for Heads of Federal Departments and
Agencies on Implementation of the National Environmental Policy Act
on September 29, 2025, that superseded the February 25, 2025,
memorandum and issued a final rule on January 8, 2026, affirming the
February 25, 2025, interim final rule.
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The revised regulations align NASA's NEPA implementing procedures
with the statutory requirements of NEPA. The changes promote regulatory
certainty and administrative efficiency, which will result in
environmental documents that inform NASA enterprise decision making on
proposed actions related to space exploration and earth observation
missions, aeronautics research, launch facilities and activities
occurring thereon, sounding rocket and balloon campaigns, field
campaigns, agency master planning, infrastructure, construction and
maintenance activities, etc. The regulations also clarify non-Federal
project sponsor procedures for preparation of environmental documents
for actions that are proposed to occur on NASA jurisdictional property
or for which NASA has final decision-making authority. Other changes
include, but are not limited to, implementation of page and time limits
[[Page 39882]]
for preparation of environmental assessments and environmental impact
statements and an update to NASA's list of existing categorical
exclusions to incorporate nineteen previously adopted categorical
exclusions from the Federal Rail Administration (FRA), Department of
Energy (DOE), National Telecommunications and Information
Administration (NTIA), U.S. Coast Guard (USCG), U.S. Forest Service
(USFS), U.S. Air Force (USAF), Department of the Air Force (DAF),
Department of the Navy, Missile Defense Agency (MDA), Defense Threat
Reduction Agency (DTRA), and Federal Bureau of Investigation (FBI).
Notices of the NASA adoptions were published at 89 FR 31772 (April 25,
2024) and 91 FR 7535 (February 18, 2026). Specifically, NASA is
removing the categorical exclusions for the two administrative
activities listed at 40 CFR 1216.304(d)(1)(ii) and (v) for ``issuing
procedural rules, manuals, directives, and requirements'' and
``information-gathering exercises, such as inventories, audits, and
studies.'' Consistent with the definition in section 111(10) of NEPA
for major Federal action (42 U.S.C. 4336(e)(10)), NASA does not
consider these categories of actions to be major Federal actions and
therefore NEPA does not apply.
The NASA working group compared NASA's current regulations with
NEPA's statutory requirements, past CEQ implementing regulations which
would provide an improved administrative framework to promote
regulatory certainty and administrative efficiency during the
development of environmental documents, NASA's existing regulations,
and NASA's underlying policies, procedures, programs, and missions to
determine what specific updates to NASA's implementing regulations were
required. The following is the structure of the new regulations:
Part 1216 Environmental Quality
Subpart 1216.1 Purpose and Policy
1216.100 Purpose and policy
1216.101 Applicability
Subpart 1216.2 NEPA and Agency Planning
1216.200 Determine when NEPA applies
1216.201 Determine the appropriate level of NEPA review
1216.202 NEPA and agency decision making
Subpart 1216.3 Categorical Exclusions
1216.300 Preparation of categorical exclusions
Subpart 1216.4 Environmental assessments
1216.400 Preparation of environmental assessments
1216.401 Findings of no significant impact
Subpart 1216.5 Environmental Impact Statements
1216.500 Preparation of environmental impact statements
1216.501 Purpose and need
1216.502 Analysis within the environmental impact statement
1216.503 Page limits
1216.504 Deadlines
1216.505 Publication of the environmental documents
Subpart 1216.6 Efficient Environmental Reviews
1216.600 Lead, cooperating, and participating agencies 1216.601
Public notice during the NEPA process
1216.602 Programmatic environmental documents, tiering, reliance,
and incorporation by reference
1216.603 Combining documents
1216.604 Supplements to environmental documents
1216.605 Integrity and completeness of information
1216.606 Integrating NEPA with other environmental requirements
1216.607 Mitigation and monitoring
1216.608 Elimination of duplication with State, Tribal, and local
procedures
1216.609 Emergencies
1216.610 Classified actions
Subpart 1216.7 Agency Decision Making
1216.700 Decision documents
1216.701 Filing requirements
Subpart 1216.8 Procedures for Non-Federal Project Sponsor-prepared NEPA
Documents
1216.800 Procedures for non-Federal project sponsor-prepared
environmental documents
Subpart 1216.9 Definitions
1216.900 Definitions
Subpart 1216.10 Severability
1216.1000 Severability
V. Regulatory Analysis
A. E.O. 12866--Regulatory Planning and Review, and E.O. 13563,
Improving Regulation and Regulatory Review
E.O. 12866 provides that the Office of Management and Budget's
(OMB) Office of Information and Regulatory Affairs (OIRA) will review
all significant rules. E.O. 13563 affirms the principles of E.O. 12866,
calling for improvements in the Federal Government's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory
objectives. E.O.s 13563 and 12866 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). After conferring with OMB-
OIRA, this interim final rule has been determined to meet the criteria
under section 3(f) of E.O. 12866 for designation as a ``significant
regulatory action.'' The rule is also considered to be a deregulatory
action under E.O. 14192.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to prepare an initial regulatory flexibility analysis to be
published at the time the interim final rule is published. This
requirement does not apply if the agency ``certifies that the rule will
not, if promulgated, have a significant economic impact on a
substantial number of small entities'' (5 U.S.C. 603). This interim
final rule modifies existing policies and procedural requirements for
NASA compliance with NEPA. The interim final rule does not regulate
small entities. Rather, the rule applies to NASA proposed action
proponents, and non-Federal project sponsors which may seek to
undertake an activity over which NASA has approval authority and sets
forth the procedural process for compliance with NEPA. The interim
final rule makes no substantive changes to requirements imposed on
applicants for licenses, permits, financial assistance, and similar
actions as related to NEPA compliance. Therefore, NASA certifies this
interim final rule does not have a ``significant economic impact on a
substantial number of small entities.''
C. Review Under the Paperwork Reduction Act
This interim final rule does not contain any information collection
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
D. Environmental Review Under the NEPA
The interim final rule revises agency procedures and guidance for
implementing NEPA. NASA NEPA implementing procedures are procedural
guidance to assist in the fulfillment of agency responsibilities under
NEPA but are not the agency's final determination of what level of NEPA
analysis is required for a particular proposed action. NEPA does not
require agencies to conduct NEPA
[[Page 39883]]
analyses or prepare NEPA documentation when establishing their own NEPA
procedures. The determination that establishing agency NEPA procedures
does not require supporting NEPA analysis and documentation has been
upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962,
972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
E. Review Under E.O. 13132, Federalism
NASA has considered this interim final rule under the requirements
of E.O. 13132, Federalism. The Agency has concluded that the interim
final rule conforms with the federalism principles set out in this
E.O., will not impose any compliance costs on the states, and will not
have substantial direct effects on the states or the relationship
between the National Government and the States or on the distribution
of power and responsibilities among the various levels of government.
Therefore, NASA has determined that no further assessment of federalism
implications is necessary.
F. Review Under the Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of
1995 (2 U.S.C. 1531-1538), NASA has assessed the effects of the interim
final rule on State, local, and Tribal governments, and the private
sector. This interim final rule would not compel the expenditure of
$100 million or more by any State, local, or Tribal government, or
anyone in the private sector. Therefore, this interim final rule is not
subject to the requirements of section 202 and 205 of the UMRA.
G. E.O. 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. Such policies include regulations that
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This interim final rule is not a
regulatory policy that has Tribal implications because it does not
impose substantial direct compliance costs on Tribal governments
(section 5(b)) and does not preempt Tribal law (section 5(c)).
H. E.O. 13211, 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. This interim final rule 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.
I. E.O. 12988, Civil Justice Reform
Under section 3(a) 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. Section 3(b) provides a list of specific issues for review to
conduct the reviews required by section 3(a). NASA has conducted this
review and determined that this interim final rule complies with the
requirements of E.O. 12988.
J. Expected Impact of the Final Rule
NASA does not expect this interim final rule to have any economic
impact on the overall economy of the United States; State, local, or
Tribal governments or communities; or any private party involved in
commercial space launch activities at NASA facilities. Given the most
recent data NASA has available, most NASA actions fall within the scope
of a categorical exclusion (98 percent categorically excluded, 1.4
percent had an environmental assessment/finding of no significant
impact, and 0.16 percent had an environmental impact statement/record
of decision). By implementing the requirements of NEPA and aligning
NASA's procedures with guidance provided by the CEQ, this interim final
rule promotes more standardized, legally sufficient, and streamlined
NEPA compliance.
The interim final rule does not raise novel legal or policy issues;
rather it promotes consistency with the law, thereby providing more
regulatory certainty concerning NEPA compliance obligations to both
NASA programs and non-Federal project sponsors who may propose actions
that would occur on NASA jurisdictional facilities. Therefore, this
interim final rule is not expected to have any adverse effect,
economically or otherwise, on NASA, any other Federal, State, local, or
Tribal entity, or any private party who may propose an action that
would occur at a NASA jurisdictional facility.
List of Subjects in 14 CFR Part 1216
Environmental impact statements, Flood plains, Foreign relations.
Nakia Marks,
Team Lead, NASA Directives and Regulations.
For the reasons given in the preamble, NASA revises 14 CFR part
1216 to read as follows:
PART 1216--ENVIRONMENTAL QUALITY
Sec.
Subpart 1216.1--Purpose and Policy
1216.100 Purpose and policy.
1216.101 Applicability.
Subpart 1216.2--NEPA and Agency Planning
1216.200 Determine when NEPA applies.
1216.201 Determine the appropriate level of NEPA review.
1216.202 NEPA and agency decision making.
Subpart 1216.3--Categorical Exclusions
1216.300 Preparation of categorical exclusions.
Subpart 1216.4--Environmental Assessments
1216.400 Preparation of environmental assessments.
1216.401 Findings of no significant impact.
Subpart 1216.5--Environmental Impact Statements
1216.500 Preparation of environmental impact statements.
1216.501 Purpose and need.
1216.502 Analysis within the environmental impact statement.
1216.503 Page limits.
1216.504 Deadlines.
1216.505 Publication of the environmental documents.
Subpart 1216.6--Efficient Environmental Reviews
1216.600 Lead, cooperating, and participating agencies.
1216.601 Public notice during the NEPA process.
1216.602 Programmatic environmental documents, tiering, reliance,
and incorporation by reference.
1216.603 Combining documents.
1216.604 Supplements to environmental documents.
1216.605 Integrity and completeness of information.
1216.606 Integrating NEPA with other environmental requirements.
1216.607 Mitigation and monitoring.
1216.608 Elimination of duplication with State, Tribal, and local
procedures.
1216.609 Emergencies.
1216.610 Classified actions.
Subpart 1216.7--Agency Decision Making
1216.700 Decision documents.
1216.701 Filing requirements.
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Subpart 1216.8--Procedures for Non-Federal Project Sponsor-prepared
NEPA Documents
1216.800 Procedures for non-Federal project sponsor-prepared
environmental documents.
Subpart 1216.9--Definitions
1216.900 Definitions.
Subpart 1216.10--Severability
1216.1000 Severability.
Authority: 51 U.S.C. 20101 et seq.; 42 U.S.C. 4321 et seq.; 42
U.S.C. 7609 et seq.
Subpart 1216.1--Purpose and Policy
Sec. 1216.100 Purpose and policy.
(a) Purpose. The purpose of the procedures in this part is to
integrate the National Environmental Policy Act (NEPA) into the
National Aeronautics and Space Administration's (NASA) decision-making
processes. The procedures in this part describe the process by which
NASA determines what actions are subject to NEPA's procedural
requirements and the applicable level of NEPA review; ensure that
relevant environmental information is identified and considered early
in the process in order to ensure informed decision making; enable NASA
to conduct coordinated, consistent, predictable and timely
environmental reviews; reduce unnecessary burdens and delays; and
implement NEPA's mandates regarding lead and cooperating agency roles,
page and time limits, and sponsor preparation of environmental
documents.
(b) Procedural and interpretive rule. This part sets forth NASA's
procedures for implementing NEPA and NASA's interpretation of certain
key terms in NEPA. It does not, nor does it intend to, govern the
rights and obligations of any party outside the Federal Government. It
does, however, establish the procedures under which NASA will fulfill
its requirements under NEPA.
(c) Consultation with the Council on Environmental Quality (CEQ).
In accord with NEPA sec. 102(2)(B), 42 U.S.C. 4332(B), NASA will
consult with CEQ while developing or revising proposed NEPA
implementing procedures under this part, including establishment of
new, or revision of existing, categorical exclusions as set forth in
subpart 1216.3 of this part.
Sec. 1216.101 Applicability.
(a) Applicability. This part is applicable to all organizational
elements of NASA.
(b) Authority. Nothing contained in this part is intended to or
should be construed to limit NASA's existing authorities or legal
responsibilities.
Subpart 1216.2--NEPA and Agency Planning
Sec. 1216.200 Determine when NEPA applies.
(a) NEPA applies to major Federal actions as defined in section
111(10) of NEPA, 42 U.S.C. 4336e (10). The terms ``major'' and
``Federal action,'' each have independent force. NEPA applies only when
both criteria are met. Such a determination is inherently bound up in
the facts and circumstances of each individual situation and is thus
reserved to the discretion of NASA in each instance.
(b) NASA will determine that NEPA does not apply to a proposed
agency action when:
(1) The activities or decision do not result in final agency action
under the Administrative Procedure Act, see 5 U.S.C. 704, or other
relevant statute that also includes a finality requirement.
(2) The proposed activity or decision is exempted from NEPA by law.
(3) Compliance with NEPA would clearly and fundamentally conflict
with the requirements of another provision of law.
(4) In circumstances where Congress by statute has prescribed
decisional criteria with sufficient completeness and precision such
that NASA retains no residual discretion to alter its action based on
the consideration of environmental factors, thus that function of NASA
is nondiscretionary within the meaning of NEPA sec. 106(a)(4) and/or
sec. 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii),
respectively), and NEPA does not apply to the action in question.
(5) The proposed action is an action for which another statute's
requirements serve the function of agency compliance with the Act.
(6) NEPA does not apply to response actions taken under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) (42 U.S.C. 9601 et seq.).
Sec. 1216.201 Determine the appropriate level of NEPA review.
(a) If NASA determines that NEPA applies to a proposed activity or
decision, NASA will then determine the appropriate level of NEPA review
in the following sequence and manner. At all steps in the following
process, NASA will consider the proposed action or project at hand and
its effects.
(1) If NASA has established, or adopted pursuant to NEPA sec. 109,
42 U.S.C. 4336c, a categorical exclusion that covers the proposed
action, NASA will analyze whether to apply the categorical exclusion to
the proposed action and apply the categorical exclusion, if
appropriate, pursuant to subpart 1216.3 of this part.
(2) If another agency has already established a categorical
exclusion that covers the proposed action, NASA will commence the
process to adopt that exclusion pursuant to Sec. 1216.300(c) so that
it can be applied to the proposed action at issue, and to future
activities or decisions of that type.
(3) If the proposed action warrants the establishment of a new
categorical exclusion, or the revision of an existing categorical
exclusion, NASA will consider whether to establish or revise and then
apply the categorical exclusion to the proposed action and to future
activities or decisions of that type.
(4) If NASA or another Federal agency has already analyzed the
proposed action in an existing environmental assessment or
environmental impact statement, NASA will consider the options outlined
in Sec. 1216.602 and rely on the existing NEPA analysis.
(5) If NASA cannot apply a categorical exclusion to or rely on an
existing NEPA analysis for the proposed action, NASA will consider the
proposed action's reasonably foreseeable effects consistent with
paragraph (b) of this section, and then will:
(i) If the proposed action is not likely to have reasonably
foreseeable significant effects or the significance of the effects is
unknown, develop an environmental assessment, as described in subpart
1216.4 of this part; or
(ii) If the proposed action is likely to have reasonably
foreseeable significant effects, develop an environmental impact
statement, as described in subpart 1216.5 of this part.
(b) When considering whether the reasonably foreseeable effects of
the proposed action are significant, NASA will analyze the potentially
affected environment and degree of the effects of the action. NASA may
use any reliable data source and will not undertake new research unless
it is essential to evaluating alternatives and the cost and time of
obtaining it are not unreasonable.
(1) In considering the potentially affected environment, NASA may
consider, as appropriate to the specific action, the scope of affected
area (national, regional, or local) and its resources (e.g., natural,
cultural, and socioeconomic resources; and environmental media).
(2) In considering the degree of the effects, NASA may consider the
following, as appropriate to the specific action:
(i) Both short- and long-term effects.
(ii) Both beneficial and adverse effects.
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(iii) Effects on public health and safety.
(iv) Economic effects.
(v) Effects on the quality of life of the American people.
Sec. 1216.202 NEPA and agency decision making.
(a) Planning. NEPA is a procedural statute intended to ensure
Federal agencies consider the environmental impacts of their proposed
actions in the decision-making process. Full and early integration of
the NEPA process with NASA project and program planning improves agency
decisions.
(b) Limitations on actions during the NEPA process. Except as
provided in paragraph (c) of this section, until NASA issues a record
of decision or finding of no significant impact, or makes a categorical
exclusion determination, as applicable, NASA will take no action
concerning a proposed action that would have an adverse environmental
effect; or limit the choice of reasonable alternatives.
(c) Actions developed by non-Federal project sponsor. If NASA is
considering a proposed action from a non-Federal entity and becomes
aware that the non-Federal project sponsor is about to take an action
within NASA's jurisdiction that would meet either of the criteria in
paragraph (b) of this section, NASA will promptly notify the non-
Federal project sponsor that NASA will take appropriate action to
ensure that the objectives and procedures of NEPA are achieved. This
section does not preclude development by non-Federal project sponsors
of plans or designs or performance of other activities necessary to
support an application for Federal, State, Tribal, or local permits or
assistance. When considering a proposed action for Federal funding,
NASA 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 non-Federal project sponsors.
(d) Non-Federal project sponsor preparation of environmental
documents. A non-Federal project sponsor may prepare an environmental
assessment or environmental impact statement under NASA's supervision.
NASA's requirements for third-party- prepared environmental assessments
and environmental impact statements are included in subpart 1216.8 of
this part. For proposed actions that are initially developed by non-
Federal entities, NASA will:
(1) Coordinate with the non-Federal project sponsor at the earliest
reasonable time in the planning process to inform the project sponsor
what information NASA will need to comply with NEPA and establish a
schedule for completing steps in the NEPA review process, consistent
with NEPA's statutory deadlines and any internal agency NEPA schedule
requirements.
(2) Begin the NEPA process by determining whether NEPA applies, as
described in Sec. 1216.200, and if it does, determine the appropriate
level of NEPA review, as described in Sec. 1216.201.
(e) Real Estate Actions. NASA must comply with this subpart when
considering issuance of a permit, license, enhanced use lease (EUL),
easement, right of way, or grant, to a Federal or a non-Federal party,
as may be applicable, and seek such Federal or non-Federal party's
assistance in obtaining necessary information and completing the NEPA
process.
Subpart 1216.3--Categorical Exclusions
Sec. 1216.300 Preparation of categorical exclusions.
(a) Generally. This section describes the process NASA uses for
establishing and revising categorical exclusions, for adopting other
agencies' categorical exclusions, and for applying categorical
exclusions to a proposed agency action. NASA's categorical exclusions
are listed in paragraph (g) of this section.
(b) Establishing and revising categorical exclusions. To establish
or revise a categorical exclusion, NASA will determine that the
category of actions normally does not significantly affect the quality
of the human environment. In making this determination, NASA will:
(1) Develop a substantiation record containing information to
support its determination.
(2) Consult with CEQ on its proposed categorical exclusion,
including the substantiation record, for a period not to exceed 30 days
prior to providing public notice.
(3) Provide public notice in the Federal Register of NASA's
establishment or revisions of the categorical exclusion, including the
location (e.g., website) of availability of the substantiation record.
(c) Adopting categorical exclusions from other Federal agencies.
Consistent with NEPA sec. 109, 42 U.S.C. 4336c, NASA may adopt a
categorical exclusion listed in another agency's NEPA procedures. When
adopting a categorical exclusion, NASA will:
(1) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its category of proposed or related
actions.
(2) Consult with the agency that established the categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion is appropriate.
(3) Provide public notification of the categorical exclusion that
NASA is adopting, including a brief description of the proposed action
or category of proposed actions to which NASA intends to apply the
adopted categorical exclusion.
(4) Document the adoption of the categorical exclusion on a public-
facing website and include in future updates to this part.
(d) Removal of categorical exclusions. To remove a categorical
exclusion from paragraph (g) of this section, NASA will:
(1) Develop a written explanation for the removal;
(2) Consult with CEQ on its proposed removal of the categorical
exclusion, including the written explanation (typically for a period of
30 days) prior to providing public notice; and
(3) Provide public notice of NASA's removal of the categorical
exclusion and the written explanation in the Federal Register. NASA may
provide notice of the availability of the explanation in the Federal
Register (i.e., as a link to an agency website) if NASA prepares the
explanation as a separate document.
(e) Applying categorical exclusions. A proposed action may be
categorically excluded if the action fits within the categories listed
in paragraph (g) of this section, and does not involve any
extraordinary circumstances in which a normally excluded action may
have a reasonably foreseeable significant effect. If NASA determines
that it cannot apply a categorical exclusion to the proposed action,
NASA will prepare an environmental assessment or environmental impact
statement, as appropriate.
(1) If an extraordinary circumstance is not present, NASA will
determine that the categorical exclusion applies to the proposed agency
action and conclude review.
(2) If an extraordinary circumstance is present, NASA may
nevertheless apply the categorical exclusion and conclude review if
NASA either:
(i) Determines that, notwithstanding the extraordinary
circumstance, the proposed agency action is not likely to result in
reasonably foreseeable adverse significant effects; or
(ii) Modifies the proposed agency action to avoid those effects.
(3) Extraordinary circumstances include situations where the
proposed action:
[[Page 39886]]
(i) Has a reasonable likelihood of having a significant effect on
public health and safety.
(ii) Imposes uncertain or unique environmental risks.
(iii) Is of significantly greater scope or size than is normal for
the category of action.
(iv) Has a reasonable likelihood of having effects that would
violate Federal, State, Tribal, or local laws, or other enforceable
requirements applicable to environmental protection.
(v) May significantly affect sensitive resources, such as, but not
limited to, federally listed threatened or endangered species, their
designated critical habitat, wilderness areas, floodplains, wetlands,
aquifer recharge areas, coastal zones, wild and scenic rivers, and
significant fish or wildlife habitat, unless the impact has been
resolved through another environmental review process (e.g., the Clean
Water Act (CWA) or the Coastal Zone Management Act (CZMA)).
(vi) May significantly affect national natural landmarks or
cultural or historic resources, including, but not limited to, property
listed on or eligible for listing on the National Register of Historic
Places, unless the impact has been resolved through another review
process (e.g., the National Historic Preservation Act (NHPA)).
(4) NASA may apply multiple categorical exclusions to the
constituent parts of a single action but must consider whether the
aggregate impacts of the constituent parts could give rise to an
extraordinary circumstance or result in reasonably foreseeable
significant effects.
(f) Documentation of categorical exclusion determinations. In cases
where NASA has determined that a Record of Environmental Consideration
(REC) is required, NASA will document its evaluation, which includes
the extraordinary circumstance review.
(g) List of categorical exclusions. NASA has established or adopted
the following categorical exclusions:
(1) Administrative Activities including:
(i) Personnel actions, organizational changes, and procurement of
routine goods and services.
(ii) Program budget proposals, disbursements, and transfer or
reprogramming of funds.
(iii) Preparing documents, including design and feasibility
studies, analytical supply and demand studies, reports and
recommendations, master and strategic plans, and other advisory
documents.
(iv) Preparing and disseminating information, including document
mailings, publications, classroom materials, conferences, speaking
engagements, websites, and other educational/informational activities.
(v) Software development, data analysis, and/or testing, including
computer modeling.
(vi) Interpretations, amendments, and modifications to contracts,
grants, or other awards.
(vii) Field studies, including water sampling, monitoring wells,
cultural resources surveys, biological surveys, geologic surveys,
modeling or simulations, routine data collection and analysis, and/or
temporary equipment.
(2) Operations and Management Activities including:
(i) Routine maintenance, minor construction or rehabilitation,
minor demolition, minor modification, minor repair, and continuing or
altered operations at, or of, existing NASA or NASA-funded or approved
facilities and equipment, such as buildings, roads, grounds, utilities,
communication systems, and ground support systems (e.g., space tracking
and data systems). This includes routine operations such as security,
public health and safety, and environmental services.
(ii) Installing or removing equipment, including component parts,
at existing government or private facilities.
(iii) Contributing equipment, software, technical advice,
exchanging data, and consulting with other agencies and public and
private entities.
(iv) NASA ceremonies, commemorative events, and memorial services.
(v) Routine packaging, labeling, storage, transportation, and
disposal of materials and wastes, in accordance with applicable
Federal, State, Tribal, or local laws or requirements. Examples include
but are not limited to hazardous, non-hazardous, and other regulated
materials and wastes.
(vi) Habitat and species management activities conducted within the
boundaries of NASA-controlled properties in accordance with applicable
Federal, State, or local requirements. Examples include but are not
limited to restoration of unique or critical habitat; thinning or brush
control to improve growth of natural habitat, reduce invasive species,
or reduce fire hazard; prescribed burning to reduce natural fuel build-
up, reduce invasive species, or improve native plant vigor; planting
appropriate vegetation that does not include noxious weeds or invasive
plants; or wildlife management activities (REC required).
(vii) Small-scale, short-term cleanup actions under the Resource
Conservation and Recovery Act or other authorities to reduce risk to
human health or the environment from the release or imminent and
substantial threat of release of a hazardous substance other than high-
level radioactive waste and spent nuclear fuel, including treatment
(such as incineration, encapsulation, physical or chemical separation,
and compaction), recovery, storage, or disposal of wastes at existing
facilities currently handling the type of waste involved in the action.
(viii) Replacement of existing energy sources with alternative or
renewable energy sources that comply with existing permit conditions.
(ix) Routine maintenance, repair, and operation of vessels
(including unmanned autonomous surface vessels), aircraft (including
unmanned aircraft systems), overland/surface transportation vehicles,
and other transportation systems as applicable. Examples include but
are not limited to transportation or relocation of NASA equipment and
hardware by barge, aircraft, or surface transportation system (e.g.,
tractor trailer or railroad); retrieval of spent solid rocket boosters
by vessel; repair or overhaul of vessel, aircraft, or surface
transportation systems that do not result in a change in the
environmental impacts of their normal operation.
(x) Construction of electric powerlines approximately 10 miles in
length or less, or approximately 20 miles in length or less within
previously disturbed or developed powerline or pipeline rights-of-way.
(xi) Construction and subsequent operation of short (generally less
than 20 miles in length) pipeline segments conveying materials (such as
air, brine, carbon dioxide, geothermal system fluids, hydrogen gas,
natural gas, nitrogen gas, oil, produced water, steam, and water)
between existing source facilities and existing receiving facilities
(such as facilities for use, reuse, transportation, storage, and
refining), provided that the pipeline segments are within previously
disturbed or developed rights-of-way.
(xii) The installation, modification, operation, or decommissioning
of commercially available solar photovoltaic systems:
(A) Located on a building or other structure (such as rooftop,
parking lot or facility, or mounted to signage, lighting, gates, or
fences); or
(B) Located within a previously disturbed or developed area.
Covered actions would be in accordance with applicable requirements
(such as land use and zoning requirements) in the proposed project area
and would be consistent with applicable plans for the management of
wildlife and habitat,
[[Page 39887]]
including plans to maintain habitat connectivity, and incorporate
appropriate control technologies and best management practices.
(xiii) Decisions to decommission or temporarily discontinue use of
equipment:
(A) Decisions to decommission or temporarily discontinue use of
vessels and aircraft. This does not preclude the need to review
decommissioning under section 106 of the National Historic Preservation
Act.
(B) Decisions to decommission or temporarily discontinue use of
equipment, not including vessels or aircraft. This does not preclude
the need to review decommissioning under section 106 of the National
Historic Preservation Act (REC required).
(xiv) Environmental restoration, remediation, pollution prevention,
and mitigation activities conducted in conformance with applicable
laws, regulations and permit requirements, including activities such as
noise mitigation, landscaping, natural resource management activities,
replacement or improvement to storm water oil/water separators,
installation of pollution containment systems, slope stabilization, and
contaminated soil removal or remediation activities.
(xv) Assembly or construction of facilities or stations that are
consistent with existing land use and zoning requirements, do not
result in a major change in traffic density on existing rail or highway
facilities, and result in approximately less than ten acres of surface
disturbance, such as storage and maintenance facilities, freight or
passenger loading and unloading facilities or stations, parking
facilities, passenger platforms, canopies, shelters, pedestrian
overpasses or underpasses, paving, or landscaping.
(xvi) Restoring wetlands, streams, riparian areas or other water
bodies by removing, replacing, or modifying water control structures
such as, but not limited to, dams, levees, dikes, ditches, culverts,
pipes, drainage tiles, valves, gates, and fencing, to allow waters to
flow into natural channels and floodplains and restore natural flow
regimes to the extent practicable where valid existing rights or
special use authorizations are not unilaterally altered or canceled.
Examples include but are not limited to:
(A) Repairing an existing water control structure that is no longer
functioning properly with minimal dredging, excavation, or placement of
fill, and does not involve releasing hazardous substances;
(B) Installing a newly-designed structure that replaces an existing
culvert to improve aquatic organism passage and prevent resource and
property damage where the road or trail maintenance level does not
change;
(C) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change; and
(D) Removing a small earthen and rock fill dam with a low hazard
potential classification that is no longer needed.
(xvii) Acquisition, installation, modification, routine repair and
replacement, and operation of utility (e.g., water, sewer, and
electrical) and communication systems, mobile antennas, data processing
cable and similar electronic equipment that use existing rights-of-way,
easements, distribution systems, facilities, or previously disturbed
land (REC required).
(xviii) New construction or equipment installation or alterations
(interior and exterior) to or construction of an addition to an
existing structure that is like existing land use if the area to be
disturbed has no more than five cumulative acres of new surface
disturbance. The following conditions must be met:
(A) The structure and proposed use are compatible with applicable
Federal, Tribal, State, and local planning and zoning standards.
(B) The site and scale of construction or improvement is consistent
with those of existing, adjacent, or nearby buildings.
(C) The construction or improvement will not result in uses that
exceed existing support infrastructure capacities (roads, sewer, water,
parking, etc.).
(xix) Demolition of non-historic buildings, structures, or other
improvements and repairs that result in disposal of debris therefrom,
or removal of a part thereof for disposal, in accordance with
applicable regulations, including those regulations applying to removal
of asbestos containing materials, Polychlorinated biphenyls (PCBs) and
lead based paint, and other special hazard items (REC required).
(xx) Routine installation and use of radars, telemetry systems,
communications equipment, and other essentially similar facilities and
equipment within a launch facility, mobile platform, military
installation, training area, or previously disturbed area that conform
to current American National Standards Institute/Institute of
Electrical and Electronics Engineers (ANSI/IEEE) guidelines for maximum
permissible exposure to electromagnetic fields.
(xxi) Performing interior and exterior construction within the five
-foot line of a building without changing the land use of the existing
building.
(xxii) Installing, operating, modifying, and routinely repairing
and replacing utility and communications systems, data processing
cable, and similar electronic equipment that use existing rights of
way, easements, distribution systems, or facilities.
(xxiii) Hosting or participating in public events (e.g., air shows,
open houses, Earth Day events, and athletic events) where no permanent
changes to existing infrastructure (e.g., road systems, parking, and
sanitation systems) are required to accommodate all aspects of the
event.
(xxiv) Abatement of hazardous materials from existing facilities,
including asbestos and lead-based paint, conducted in compliance with
all applicable laws, regulations, and requirements established for the
protection of human health and the environment. Examples include
containment, removal, and disposal of lead-based paint or asbestos
tiles and asbestos-containing materials from existing facilities, and
remediation of hazardous materials in accordance with all applicable
laws, regulations, and requirements as part of facility and space
management activities.
(xxv) Renovation, addition, repair, alteration, and demolition
projects affecting buildings, roads, airfields, grounds, equipment, and
other facilities, including subsequent disposal of debris, which may be
contaminated with hazardous materials such as PCBs, lead, or asbestos.
Hazardous materials shall be disposed of at approved sites in
accordance with Federal, State, and local regulations.
(3) Research, Development, and Science Activities including:
(i) Research, development, testing, and evaluation in compliance
with all applicable Federal, State, Tribal, or local laws or
requirements and E.O.s. This includes the research, development,
testing, and evaluation of scientific instruments proposed for use on
spacecraft, aircraft (including unmanned aircraft systems), sounding
rockets, balloons, laboratories, watercraft, or other outdoor
activities.
(ii) Use of small quantities of radioactive materials used for
instrument detectors, calibration, and other purposes. Materials may be
associated with the proposed use on spacecraft, aircraft (including
unmanned aircraft systems), sounding
[[Page 39888]]
rockets, balloons, laboratories, watercraft, or other outdoor
activities.
(iii) Use of lasers for research and development, scientific
instruments and measurements, and distance and ranging, where such use
meets all applicable Federal, State, Tribal, or local laws or
requirements and E.O.s. This includes lasers associated with
spacecraft, aircraft (including unmanned aircraft systems), sounding
rockets, balloons, laboratories, watercraft, or other outdoor
activities.
(iv) Use of non-space nuclear system payloads on various platforms
(e.g., launch vehicle, sounding rocket, scientific balloon, and
aircraft) (REC required).
(v) Return of samples from solar system bodies (e.g., asteroids,
comets, planets, dwarf planets, and planetary moons) to Earth when
categorized as an Unrestricted Earth Return. NASA defines this activity
as collecting extraterrestrial materials from solar system bodies,
deemed by scientific opinion to have no indigenous life forms, and
returning those samples to Earth (REC required).
(vi) Outdoor tests and experiments for the development, quality
assurance, or reliability of materials and equipment under controlled
conditions. Covered actions include, but are not limited to, burn tests
(such as tests of electric cable fire resistance or the combustion
characteristics of fuels), impact tests (such as pneumatic ejector
tests using earthen embankments or concrete slabs designated and
routinely used for that purpose), or drop, puncture, water-immersion,
or thermal tests. Covered actions would not involve source, special
nuclear, or byproduct materials, except encapsulated sources
manufactured to applicable standards that contain source, special
nuclear, or byproduct materials may be used for nondestructive actions
such as detector/sensor development and testing and first responder
field training.
(4) Real and Personal Property Activities including:
(i) Acquisition, transfer, or disposal of any personal property, or
personal property rights or interests.
(ii) Granting or accepting easements, leases, licenses, rights-of-
entry, and permits to use NASA property, or any non-NASA property, for
activities that would be categorically excluded in accordance with this
section (REC required).
(iii) Transfer or disposal of real property, property rights, or
interests if a resulting change in use is a use that would be
categorically excluded under this section (REC required).
(iv) Transferring real property administrative control to another
Federal agency, including the return of public domain lands to the
Department of the Interior (DoI) or other Federal agencies, and
reporting of property as excess and surplus to the General Services
Administration (GSA) for disposal, when the agency receiving
administrative control (or GSA, following receipt of a report of
excess) shall complete any necessary NEPA review prior to any change in
land use (REC required).
(v) Acquisition of real property (including facilities) where the
land use will not change substantially (REC required).
(vi) Change in the facility status of real property assets (e.g.,
active or inactive).
(vii) Reductions, realignments, or relocation of personnel into
existing federally owned or commercially leased space that does not
involve a substantial change affecting the supporting infrastructure
(e.g., no increase in vehicular traffic beyond the capacity of the
supporting road network to accommodate such an increase).
(viii) Determination by NASA that NASA controlled personal
property, including vessels and aircraft, is ``excess property'', as
that term is defined in the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 102(3)), and any subsequent transfer of
such property to another Federal agency's administrative control or
conveyance of the United States' title in such property to a non-
Federal entity.
(5) Aircraft and Airfield Activities including:
(i) Periodic aircraft (including unmanned aircraft systems) flight
activities, including training and research and development, which are
routine and comply with applicable Federal, State, Tribal, or local
laws or requirements, and E.O.s.
(ii) Relocation of similar aircraft (including unmanned aircraft
systems) not resulting in a substantial increase in total flying hours,
number of aircraft operations, operational parameters (e.g., noise), or
permanent personnel or logistics support requirements at the receiving
installation (REC required).
(iii) Supersonic flying aircraft operations over land and above
30,000 feet Mean Sea Level, or over water and above 10,000 feet Mean
Sea Level and more than 15 nautical miles from land (REC required).
(h) Reliance. Reliance on categorical exclusion determination of
other agencies. NASA may also rely on another agency's determination
that a categorical exclusion applies to a particular proposed agency
action if the agency action covered by that determination and NASA's
proposed action are substantially the same, or if NASA's proposed
action is a subset of the agency action covered by that determination.
NASA will document its reliance on another agency's categorical
exclusion determination in a REC.
Subpart 1216.4--Environmental Assessments
Sec. 1216.400 Preparation of environmental assessments.
(a) Generally. If an action is subject to NEPA, and, unless NASA
finds that the proposed action is excluded from having to prepare an
environmental assessment or environmental impact statement pursuant to
a categorical exclusion, or by another provision of law, NASA will
prepare an environmental assessment with respect to a proposed agency
action that does not have a reasonably foreseeable significant effect
on the quality of the human environment, or if the significance of such
effect is unknown.
(b) Elements. For providing evidence and analysis for determining
whether to prepare an environmental impact statement or a finding of no
significant impact, environmental assessments will briefly discuss the:
(1) Purpose and need for the proposed agency action.
(2) Alternatives to the extent required by NEPA sec. 102(2)(H), 42
U.S.C. 4332(2)(H).
(3) The reasonably foreseeable effects of the proposed agency
action for each of the alternatives considered.
(c) Agency actions normally requiring an environmental assessment.
The following classes of actions normally require environmental
assessments, but likely do not require an environmental impact
statement:
(1) Altering the ongoing operations at a NASA Center where the
significance of the environmental effect(s) is unknown.
(2) Construction or modifications of facilities that represent a
major change to an existing master plan and could result in a change in
the environmental effect(s).
(3) Actions that are expected to result in major changes to
established land use that could potentially result in impacts to the
environment.
(4) Launching a spacecraft containing a space nuclear system. Space
nuclear systems include radioisotope power systems, such as
radioisotope thermoelectric generators and radioisotope heater units,
and fission systems used for surface power and spacecraft propulsion.
[[Page 39889]]
(d) Page limits. (1) The text of an environmental assessment will
not exceed 75 pages, not including citations, appendices, explanatory
maps, diagrams, graphs, tables, and other means of graphically
displaying quantitative or geospatial information.
(2) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
assessment. Appendices are not to be used to provide additional
substantive analysis because that would circumvent congressionally
mandated page limits.
(3) Environmental assessments will be formatted for an 8.5''x11''
page with one-inch margins using a word processor with 12-point
proportionally spaced font, single spaced. Footnotes may be in 10-point
font. Such size restrictions do not apply to explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information, although pages containing such
material do count towards the page limit when an item of graphical
material is larger than 8.5''x11'', each such item will count as one
page.
(4) The breadth and depth of analysis in an environmental
assessment will be tailored to ensure that the environmental analysis
does not exceed this page limit. In this regard, as part of the
finalization of the environmental assessment, a re-certification will
be incorporated into the environmental assessment certifying that NASA
has considered the factors mandated by NEPA; that the environmental
assessment represents NASA's good-faith effort to prioritize
documentation of the most important considerations required by the
statute within the congressionally mandated page limits; that this
prioritization reflects NASA's expert judgment; and that any
considerations addressed briefly or left unaddressed were, in NASA's
judgment, comparatively not of a substantive nature that meaningfully
informed the consideration of environmental effects and the resulting
decision on how to proceed.
(e) Deadlines. NASA will complete the final environmental
assessment not later than the date that is one year after the date on
which NASA provides notice on a public-facing website that an
environmental assessment will be prepared. The environmental assessment
will be published, unless the deadline is extended, at the latest, on
the day the deadline elapses in as substantially complete form as is
possible.
(f) Deadline extensions. If NASA determines it cannot meet the
deadline prescribed by NEPA sec. 107(g)(1)(B), 42 U.S.C.
4336a(g)(1)(B), it must consult with the non-Federal entity, if any,
pursuant to NEPA sec. 107(g)(2), 42 U.S.C. 4336a(g)(2). After such
consultation, if needed, it may establish a new deadline. Cause for
establishing a new deadline is only established if the environmental
assessment is so incomplete, at the time at which NASA determines it
cannot meet the statutory deadline, that issuance would, in NASA's
view, result in inadequate analysis. Such new deadline must provide
only so much additional time as is necessary to complete such
environmental assessment. The announcement of the new deadline will
specify the reason why the environmental assessment was not able to be
completed under the statutory deadline and whether the non-Federal
entity, if any, consented to the new deadline.
(g) Certification related to deadline. When the environmental
assessment is published, a certification will be incorporated into the
environmental assessment certifying that the resulting environmental
assessment represents NASA's good-faith effort to fulfill NEPA's
requirements within the congressional timeline; that such effort is
substantially complete; that, in NASA's expert opinion, it has
thoroughly considered the factors mandated by NEPA; and that, in NASA's
judgement, the analysis contained therein is adequate to inform and
reasonably explain NASA's final decision regarding the proposed Federal
action.
(h) Scope of analysis. (1) In preparing the environmental
assessment, NASA will focus its analysis on whether the environmental
effects of the action or project at hand are significant.
(2) Similarly, NASA will document in the environmental assessment
where and how it drew a reasonable and manageable line relating to its
consideration of any environmental effects from the action or project
at hand that extend outside the geographical territory of the project
or might materialize later in time.
Sec. 1216.401 Findings of no significant impact.
(a) NASA will prepare a finding of no significant impact if NASA
determines, based on the environmental assessment, not to prepare an
environmental impact statement because the proposed action or project
at hand will not have significant effects. The finding of no
significant impact will:
(1) Include the environmental assessment or incorporate it by
reference.
(2) Document the reasons why NASA has determined that the selected
alternative will not have a significant adverse effect on the quality
of the human environment.
(3) State the authority for any mitigation that NASA has assumed
and any applicable monitoring or enforcement provisions. If NASA finds
no significant effects based on mitigation, the mitigated finding of no
significant impact will state any mitigation requirements enforceable
by the agency or voluntary mitigation commitments that will be
undertaken to avoid significant effects.
(4) Identify any other environmental documents related to the
finding of no significant impact.
(5) State that an environmental impact statement will not be
prepared, concluding the NEPA process for that action.
(b) The agency will make the environmental assessment and finding
of no significant impact available on a public-facing website.
Subpart 1216.5--Environmental Impact Statements
Sec. 1216.500 Preparation of environmental impact statements.
(a) NASA shall prepare an environmental impact statement for
actions that are likely to significantly impact the quality of the
human environment, including actions for which an environmental
assessment demonstrates that significant environmental impacts will
potentially occur which will not be reduced or eliminated by changes to
the proposed action or mitigation of its potentially significant
environmental impacts. Whether an impact rises to the level of
``significant'' is a matter of NASA's expert judgment. An environmental
impact statement shall be prepared and published in accordance with 42
U.S.C. 4332(C) and Sec. 1216.601.
(b) NASA actions normally requiring an environmental impact
statement include:
(1) Development and operation of new NASA-developed launch vehicles
or space transportation systems.
(2) Management, including recovery, transport, and curation, of
sample returns to Earth from solar system bodies (such as asteroids,
comets, planets, dwarf planets, and planetary moons) that would receive
a Restricted Earth Return categorization. NASA requires such a mission
to include additional measures to ensure any
[[Page 39890]]
potential indigenous life form would be contained so it could not
adversely impact humans or Earth's environment.
(3) Substantial construction projects expected to result in
significant adverse effect(s) on the quality of the human and natural
environment when such construction and its effects are not within the
scope of an existing master plan.
(c) During the process of preparing an environmental impact
statement, NASA:
(1) Will obtain the comments of:
(i) Any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact of the action or
project at hand or is authorized to develop and enforce environmental
standards that govern the action or project at hand.
(ii) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards.
(2) May request the comments of:
(i) State, Tribal, or local governments that may be affected by the
proposed action.
(ii) Any agency that has requested it receive statements on actions
of the kind proposed.
(iii) The non-Federal project sponsor, if any.
(iv) The public, including by affirmatively soliciting comments in
a manner designed to inform those persons or organizations who may be
interested in or affected by the proposed action.
(d) The process of obtaining and requesting comments in paragraph
(c) of this section may be undertaken at any time that is reasonable in
the process of preparing the environmental impact statement. NASA will
ensure that the process of obtaining and requesting comments, and
NASA's analysis of and response to those comments, does not cause NASA
to violate the congressionally mandated deadline for completion of an
environmental impact statement.
(e) NASA will address any substantive comments received consistent
with paragraph (c) of this section in the environmental impact
statement. Based on substantive comments and/or recommendations, NASA
may consider such responses by:
(1) Modifying alternatives, including the proposed action.
(2) Developing and evaluating alternatives not previously
considered.
(3) Supplementing, improving, or modifying analyses, to include
consideration of science or literature not previously considered.
(4) Making factual corrections.
(5) The agency may provide brief rationale for taking no action,
such as:
(i) The comment is outside the scope of what is being proposed.
(ii) There is no cause-effect relationship between the actions the
agency is proposing and the issue raised and/or recommendation made.
(iii) The commenter misinterpreted the information provided.
(iv) The recommendation made does not comply with applicable laws
or regulations and/or is not technically or economically feasible to
implement.
(v) The comment was received outside the timeframe provided for
such comments.
Sec. 1216.501 Purpose and need.
The environmental impact statement will include the purpose and
need for the proposed agency action based on NASA's statutory
authority. When the proposed agency action concerns a non-Federal
project sponsor, the purpose and need for the proposed agency action
will also be informed by the goals of the non-Federal project sponsor.
Sec. 1216.502 Analysis within the environmental impact statement.
(a) The environmental impact statement will include a detailed
statement on:
(1) A reasonable range of alternatives to the proposed agency
action, including an analysis of any adverse environmental impacts of
not implementing the proposed agency action in the case of a no action
alternative, that are, in NASA's expert judgment, technically and
economically feasible and meet the purpose and need of the proposal.
(2) Reasonably foreseeable environmental effects of the proposed
agency action and alternatives including the no action alternative.
(3) Any reasonably foreseeable adverse environmental effects which
cannot be avoided should the proposal be implemented.
(4) The relationship between local short-term uses of the human
environment and the maintenance and enhancement of long-term
productivity.
(5) Any irreversible and irretrievable commitments of Federal
resources which would be involved in the proposed agency action should
it be implemented.
(6) Any means identified to mitigate adverse environmental effects
of the proposed action. NASA is mindful in this respect that NEPA
itself does not require or authorize NASA to impose any mitigation
measures in environmental impact statements.
(b) The environmental impact statement will define a scope of
analysis.
(1) In preparing the environmental impact statement, NASA will
focus its analysis on whether the environmental effects of the action
or project at hand are significant.
(2) Similarly, NASA will document in the environmental impact
statement where and how it drew a reasonable and manageable line
relating to its consideration of any environmental effects from the
action or project at hand that extend outside the geographical
territory of the project or might materialize later in time.
(c) Environmental impact statements will discuss effects in
proportion to their significance. With respect to issues that are not
of a substantive nature, lack a close causal connection, and do not
meaningfully inform the consideration of environmental effects and the
resulting decision on how to proceed, there will be no more than the
brief possible discussion to explain why those issues are not
substantive and therefore not worthy of any further analysis.
Environmental impact statements will be analytic, concise, and no
longer than necessary to comply with NEPA considering the
congressionally mandated page limits and deadlines.
Sec. 1216.503 Page limits.
(a) Except as provided in paragraph (b) of this section, the text
of an environmental impact statement will not exceed 150 pages, not
including citations, appendices, explanatory maps, diagrams, graphs,
tables, and other means of graphically displaying quantitative or
geospatial information.
(b) An environmental impact statement for a proposed agency action
of extraordinary complexity is strictly prohibited from exceeding 300
pages, not including any citations, appendices, explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information. NASA will determine at the
earliest possible stage of preparation of an environmental impact
statement whether the conditions for exceeding the page limit in
paragraph (a) of this section are present.
(c) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
impact statement. Appendices are not to be used to provide additional
substantive analysis, because that would circumvent the congressionally
mandated page limits.
(d) Environmental impact statements will be prepared on 8.5'' x
11'' paper with one-inch margins using a word processor with 12-point
proportionally
[[Page 39891]]
spaced font, single spaced. Footnotes may be in 10-point font. Such
size restrictions do not apply to explanatory maps, diagrams, graphs,
tables, and other means of graphically displaying quantitative or
geospatial information, although pages containing such material do
count towards the page limit when an item of graphical material is
larger than 8.5'' x 11'', each such item will count as one page.
(e) The breadth and depth of analysis in an environmental impact
statement will be tailored to ensure that the environmental impact
statement does not exceed these page limits. In this regard, as part of
the finalization of the environmental impact statement, a certification
will be incorporated into the environmental impact statement certifying
that NASA has considered the factors mandated by NEPA; that the
environmental impact statement represents NASA's good-faith effort to
prioritize documentation of the most important considerations required
by the statute within the congressionally mandated page limits; that
this prioritization reflects NASA's expert judgment; and that any
considerations addressed briefly or left unaddressed were, in NASA's
judgment, comparatively unimportant or frivolous.
Sec. 1216.504 Deadlines.
(a) NASA will complete the final environmental impact statement not
later than the date that is two years after the date on which NASA
provides notice of intent on a public-facing website that an
environmental impact statement will be prepared.
(b) The environmental impact statement will be published (unless
the deadline is extended) on the day the deadline elapses, in as
substantially complete form as is possible.
(c) If NASA determines it cannot meet the deadline prescribed by
NEPA sec. 107(g)(1)(A), 42 U.S.C. 4336a(g)(1)(A), it must consult with
the non-Federal project sponsor, if any, pursuant to NEPA sec.
107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation, if needed,
it may establish a new deadline. Cause for establishing a new deadline
is only established if the environmental impact statement is so
incomplete, at the time at which NASA determines it cannot meet the
statutory deadline, that issuance would, in NASA's view, result in an
inadequate analysis. Such new deadline must provide only so much
additional time as is necessary to complete such environmental impact
statement. The announcement of the new deadline will specify the reason
why the environmental impact statement was not able to be completed
under the statutory deadline and whether the non-Federal project
sponsor, if any, consented to the new deadline.
(d) When the environmental impact statement is published, a
certification will be incorporated into the environmental impact
statement certifying that the resulting environmental impact statement
represents NASA's good-faith effort to fulfill NEPA's requirements
within the congressional timeline; that such effort is substantially
complete; and that, in NASA's expert opinion, it has thoroughly
considered the factors mandated by NEPA; and that, in NASA's judgment,
the analysis contained therein is adequate to inform and reasonably
explain NASA's final decision regarding the proposed Federal action.
Sec. 1216.505 Publication of the environmental documents.
NASA will publish the entire environmental impact statement and
record of decision on a public-facing NASA website. During the process
of preparing the environmental impact statement, NASA may publish such
draft, pre-decisional materials as in its judgment may assist in
fulfilling its responsibilities under NEPA and this subpart. NASA will
also file with EPA as required under Sec. 1216.701.
Subpart 1216.6--Efficient Environmental Reviews
Sec. 1216.600 Lead, cooperating, and participating agencies.
(a) NASA shall serve as the lead Federal agency for proposed
actions which it proposes and over which no other Federal agency has
jurisdiction by law to permit, approve, or authorize a required aspect
of the proposed action. When serving as the lead agency, NASA is
ultimately responsible for completing the NEPA process and will
determine and document the scope of the project at hand. When a joint
lead relationship is established pursuant to NEPA sec. 107(a)(1)(B), 42
U.S.C. 4336a(a)(1)(B), NASA and the other joint lead agency or agencies
are collectively responsible for completing the NEPA process.
(b) If NASA shares responsibility with another Federal agency for
NEPA compliance, NASA and the other agency shall, prior to issuing a
notice to prepare an environmental assessment or environmental impact
statement, determine by letter or memorandum, which agency shall be the
lead agency based on consideration of the:
(1) Magnitude of each agency's involvement.
(2) Project approval or disapproval authority.
(3) Expertise concerning the proposed action's environmental
effects.
(4) Duration of each agency's involvement.
(5) Sequence of each agency's involvement.
(c) In deciding under paragraph (b) of this section, NASA and other
participating Federal agencies may agree to appoint such State, Tribal,
or local agencies as joint lead agencies as the involved Federal
agencies determine to be necessary.
(d) When serving as the lead agency, NASA may, with respect to a
proposed agency action, designate 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 to serve as a
cooperating agency. A cooperating agency may, not later than a date
specified in the schedule established by NASA, submit comments on the
environmental document being prepared for the proposed action.
(e) NASA may request other Federal, State, Tribal, or local
agencies to serve as participating agencies in the NEPA process where
the Federal, State, Tribal, or local agency has particularized
knowledge regarding an aspect of the project that will beneficially
inform development of the environmental document and subsequent final
agency decision making on the proposed action. A participating agency
may, not later than a date specified in the schedule established by
NASA, submit comments on the environmental document being prepared for
the proposed action.
(f) To the extent practicable, NASA will prepare a single,
coordinated environmental document for NEPA actions with joint,
cooperating, and participating agencies.
Sec. 1216.601 Public notice during the NEPA process.
(a) For every environmental impact statement prepared by NASA, the
following requirements, at a minimum, shall be implemented:
(1) Publication of a notice of intent to prepare an environmental
impact statement on a public-facing website. The notice of intent for
an environmental impact statement will include a request for public
comments on alternatives or effects and on relevant information,
studies, or analyses with respect to the proposed agency action. In
addition to a request for comment required for notices of intent for
environmental impact statements, the notice of intent may include:
[[Page 39892]]
(i) The purpose and need for the proposed action;
(ii) A preliminary description of the proposed action and
alternatives the environmental impact statement will consider;
(iii) A brief summary of expected effects;
(iv) Anticipated permits and other authorizations (i.e.,
anticipated related actions);
(v) A schedule for the decision-making process;
(vi) A description of the public scoping process, including any
scoping meeting(s);
(vii) Contact information for a person within NASA who can answer
questions about the proposed action and the environmental impact
statement; and
(viii) Identification of any cooperating and participating agencies
and any information that such agencies require in the notice to
facilitate their decisions or authorizations.
(2) Publication of a notice of availability and notice of
additional public meetings, and/or additional request for comments
(collectively, ``NOA''), as applicable, for the environmental impact
statement on a public-facing website.
(i) The NOA may solicit public comment on the sufficiency of the
environmental analysis set forth in the environmental impact statement,
and should announce the date, time, and location of any public
meetings, either in-person or virtual, concerning the proposed action.
(ii) [Reserved]
(3) Publication of the record of decision, if applicable, on a
public-facing website.
(b) For every environmental assessment prepared by NASA, the
following requirements, at a minimum, shall be implemented:
(1) NASA will provide notice on a public-facing website that an
environmental assessment will be prepared.
(2) NASA will make the environmental assessment and finding of no
significant impact available on a public-facing website.
(c) NASA may use an early and open process to determine the scope
of issues for analysis in an environmental document, including
identifying substantive issues that meaningfully inform the
consideration of environmental effects and the resulting decision on
how to proceed, eliminating from further study non-substantive issues,
and determining whether connected actions should be addressed in the
same environmental document. Scoping may begin as soon as practicable
after the proposal for action is sufficiently developed for
consideration. Scoping may include appropriate pre-application
procedures or work conducted prior to publication of the notice of
intent.
Sec. 1216.602 Programmatic environmental documents, tiering,
reliance, and including material by reference.
(a) For actions that require environmental assessments or
environmental impact statements, NASA will undertake programmatic-level
analysis for actions that are similar in nature, broad in scope, or
likely to have similar environmental effects, as applicable.
Programmatic NEPA analyses may take place in the form of an
environmental assessment or environmental impact statement.
(b) Tiering from previously prepared environmental impact
statements or environmental assessments is appropriate when it would
eliminate repetitive discussions of the same issues and exclude from
consideration issues already decided. Tiering from a programmatic-level
NEPA document is appropriate for site- or project-specific actions that
are included within the scope of the programmatic-level analysis.
(c) NASA may use programmatic environmental impact statements or
environmental assessments without additional review for five years from
the publication date unless there are substantial new circumstances or
information about the significance of adverse effects that bear on the
analysis
(d) After five years, NASA may use programmatic environmental
impact statements and environmental assessments after the analysis and
assumptions in the environmental impact statement or environmental
assessment are reevaluated to ensure reliance of the analysis is still
valid. Reevaluation will be documented in a record of environmental
consideration or memorandum to the file, including explanation for why
the analysis remains valid considering any new and substantial
information or circumstances.
(e) NASA may rely on another Federal agency's environmental impact
statement or environmental assessment, or portion thereof, if NASA
conducts an independent review of the document and concludes that it
meets the standards for an adequate environmental impact review,
pursuant to this part and 42 U.S.C. 4321 et seq. When relying on an
environmental impact statement, environmental assessment, or portion
thereof, NASA will cite, briefly describe the content and relevance to
the environmental document, and may make modifications that are
necessary to render the relied-upon document, or portion thereof, fit
for fulfilling NEPA's analytic requirements for the action at hand.
(1) If the actions covered by the original environmental impact
statement or environmental assessment and the proposed action are
substantially the same, NASA will republish the relied-upon statement
or assessment.
(2) If the actions are not substantially the same, NASA may modify
the statement or assessment as necessary to render the statement fit
for fulfilling NEPA's analytic requirements for the action at hand, and
publish the relied-upon statement or assessment, as modified. Where
appropriate, NASA may solicit comment to the extent that solicitation
of comment will assist NASA in expeditiously adapting the relied-upon
statement or assessment so that it is fit for NASA's purposes.
(f) NASA shall include by reference material such as planning
studies, analyses, or other relevant information, into an environmental
impact statement or environmental assessment when the effect will be to
cut down on bulk without impeding NASA and public review of the action.
NASA shall cite the referenced material in the document and briefly
describe its content. NASA shall not include material by reference
unless it is reasonably available for inspection by potentially
interested persons. NASA shall not include by reference material based
on proprietary data that is not available for review and comment. NASA
shall not use inclusion by reference to evade the statutory page
limits.
Sec. 1216.603 Combining documents.
NASA will combine, to the fullest extent practicable, any NEPA
document with any other Federal agency NEPA document to reduce
duplication and paperwork.
Sec. 1216.604 Supplements to environmental documents.
(a) In cases where a major Federal action remains to occur,
supplemental documentation may be required for previously prepared
environmental assessments or environmental impact statements under the
following circumstances:
(1) If substantial changes are made to the proposed action that are
relevant to environmental concerns.
(2) There are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action and its
impacts.
[[Page 39893]]
(3) NASA determines that the purposes of NEPA will be furthered by
doing so.
(b) The preparation of a supplemental environmental assessment or
environmental impact statement shall be undertaken using the same
procedural requirements as the initial document however, in the event a
supplement to an environmental impact statement is required, public
scoping shall not be required unless, at NASA's discretion, it is
determined to be necessary or would otherwise further the purposes of
NEPA.
(c) When it is unclear if an environmental assessment or
environmental impact statement supplement is required, NASA may prepare
a written reevaluation.
(1) The written reevaluation will discuss the circumstances that
are pertinent to deciding whether to prepare a supplemental
environmental assessment or environmental impact statement.
(2) The written reevaluation will contain sufficient information
for NASA to determine whether:
(i) An existing environmental assessment or environmental impact
statement should be supplemented;
(ii) A new environmental assessment or environmental impact
statement should be prepared; or
(iii) No further NEPA documentation is required.
(3) NASA shall make the determination and the related written
reevaluation available to the public for information.
(d) When applicable, NASA shall incorporate the determination and
supporting written reevaluation into the administrative record related
to the action that is the subject of the environmental assessment or
environmental impact statement supplement or determination.
Sec. 1216.605 Integrity and completeness of information.
(a) NASA will not undertake new scientific and technical research
to inform its analyses unless it is essential to a reasoned choice
among alternatives and the overall costs and time frame of such
undertaking are not unreasonable. Rather, NASA will make use of
reliable existing data and resources.
(b) When NASA is evaluating an action's reasonably foreseeable
effects on the human environment, and there is incomplete or
unavailable information that cannot be obtained at a reasonable cost or
the means to obtain it are unknown, NASA will make clear in the
relevant NEPA document that such information is lacking.
Sec. 1216.606 Integrating NEPA with other environmental requirements.
(a) To the fullest extent possible, NASA will prepare NEPA
documents concurrently with and integrated with analyses and related
surveys and studies required by other Federal statutes.
(b) NASA will combine a NEPA document with any other agency
document to reduce duplication and paperwork. Thus, NASA may combine a
NEPA document with related plans, rules, or amendments as a single
consolidated document.
(c) If comments on a notice of intent or other aspects of a scoping
process identify consultations, permits, or licenses necessary under
other environmental laws, the NEPA document may contain a section
briefly listing the applicable requirements and how NASA or a non-
Federal entity has or will meet them (e.g., permits applied for or
received, consultations initiated or concluded).
Sec. 1216.607 Mitigation and monitoring.
(a) When the analysis proceeds to an environmental assessment or
environmental impact statement and mitigation measures are assumed for
the purpose of avoiding or reducing the significance of environmental
impacts, such mitigation measures will be identified in the finding of
no significant impact or the record of decision.
(b) NASA or the non-Federal project sponsor shall implement
mitigation measures (including adaptive management strategies, where
appropriate) consistent with applicable finding of no significant
impact and/or record of decision and as required shall monitor their
implementation and effectiveness.
(c) The NASA responsible official or non-Federal project sponsor
shall ensure that funding for such mitigation measures is included in
the program or project budget.
Sec. 1216.608 Elimination of duplication with State, Tribal, and
local procedures.
(a) NASA will cooperate with State, Tribal, and local agencies that
are responsible for preparing environmental documents.
(b) To the fullest extent practicable unless specifically
prohibited by law, NASA will cooperate with State, Tribal, and local
agencies to reduce duplication between NEPA and State, Tribal, and
local requirements, including through use of studies, analysis, and
decisions developed by State, Tribal, or local agencies. Such
cooperation may include:
(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public meetings (except where otherwise provided by
statute).
(4) Joint environmental documents.
Sec. 1216.609 Emergencies.
When NASA determines that emergency circumstances exist which make
it necessary to take immediate response and/or recovery action(s)
before preparing a NEPA analysis, then the following provisions apply:
(a) NASA may undertake immediate emergency response and/or recovery
action(s) necessary to protect life, property, or important natural,
cultural, or historic resources. When taking such action(s), NASA
shall, to the extent practicable, mitigate reasonably foreseeable
adverse environmental impacts.
(b) If NASA proposes emergency response and/or recovery actions
that will continue beyond those needed to immediately protect life,
property, and important natural, cultural, or historic resources, NASA
shall determine the appropriate level of NEPA compliance.
(c) If continuation of the emergency actions will reasonably result
in significant environmental impacts, NASA shall notify CEQ about
alternative arrangements for compliance.
Sec. 1216.610 Classified actions.
(a) The classified status of a proposed action does not relieve
NASA of the requirement to assess, document, and consider the
environmental impacts of the proposed action.
(b) When classified information can reasonably be separated from
other information and a meaningful environmental analysis can be
produced, unclassified documents will be prepared and processed in
accordance with this section. Classified portions will be kept separate
and provided to properly cleared reviewers and decision makers in the
form of a properly classified document that meets the requirements of
this section to the extent permitted, given such classification.
Subpart 1216.7--Agency Decision Making
Sec. 1216.700 Decision documents.
At the time of its decision on its proposed action, NASA may
prepare and timely publish a concise public decision document,
notifying the public that the decision maker has certified that NASA
has considered all relevant information raised in the NEPA process and
that the NEPA process has closed,
[[Page 39894]]
pursuant to Sec. Sec. 1216.400(e) and 1216.504.
Sec. 1216.701 Filing requirements.
NASA will file environmental impact statements together with
comments and responses with the Environmental Protection Agency (EPA),
for publication in the Federal Register.
Subpart 1216.8--Procedures for Non-Federal Project Sponsor-Prepared
NEPA Documents
Sec. 1216.800 Procedures for non-Federal project sponsor-prepared
environmental documents.
(a) A non-Federal project sponsor may request to prepare an
environmental assessment or environmental impact statement. If the
request is approved, the non-Federal project sponsor shall undertake
preparation of the environmental document under the supervision of
NASA.
(b) The non-Federal project sponsor shall ensure that the
environmental document's analysis is sufficient to meet the
requirements of NEPA and this part, including the potential impacts on
the natural and human environments and sufficient information that
complies with all applicable Federal, Tribal, and State requirements
for the protection of the environment.
(c) The non-Federal project sponsor shall coordinate with NASA on
communications to other Federal, State, local, and Tribal agencies with
respect to permits, licenses, consultations, approvals, and
authorizations associated with the proposed action.
(d) A non-Federal project sponsor must include a lifecycle analysis
of the proposed action and alternatives (i.e., construction, operation,
and decommissioning of the proposed project).
(e) NASA must approve the scope of analysis (e.g., natural,
cultural, and socioeconomic resources; and environmental media)
required for completion of the appropriate environmental document. NASA
will provide appropriate guidance and assist in environmental document
preparation, to the extent that NASA's resources and policy priorities
admit. NASA will work with the non-Federal project sponsor to define
the purpose and need, and, when appropriate, to develop a reasonable
range of alternatives to meet that purpose and need.
(f) NASA will decide whether an environmental assessment or
environmental impact statement requires public engagement. If required,
the non-Federal project sponsor shall coordinate with NASA in all
aspects of the public engagement process, including, but not limited
to, the publication of notices (intent, public meetings, availability
of environmental documents) in publicly available media (i.e., local,
regional, national news outlets of broad circulation; social media
outlets; public-facing websites); the preparation of a public
engagement plan; the preparation of all public meeting materials or
media packages; and any other materials that support public engagement
in the NEPA process.
(g) The non-Federal project sponsor shall allow the participation
of joint, cooperating, or participating agencies, as appropriate.
(h) The non-Federal project sponsor may prepare a ``confidential
business information'' (CBI) or ``proprietary information'' annex to
the environmental document which it prepares. Upon review and approval
by NASA, this information may be withheld from public dissemination,
but the CBI/proprietary information annex will be incorporated as part
of the final administrative record.
(i) The non-Federal project sponsor shall meet all requirements of
this part, including the timeframes for completion of the environmental
document as set forth in Sec. Sec. 1216.400(e) and 1216.504(a). Major
changes to the schedule or related matters will be documented through
written correspondence.
(j) NASA shall assist in the preparation of the non-Federal project
sponsor's environmental document, independently evaluate the
environmental document, and be responsible for the environmental
document's analytical and legal sufficiency. NASA shall be responsible
for issuing any record of decision or finding of no significant impact
as may be required.
(k) Non-Federal project sponsors intending to pay a fee for an
expedited environmental impact statement or environmental assessment
deadline pursuant to section 112 of NEPA for which NASA would be the
lead agency should consult with NASA before submitting a request to the
CEQ. NASA will use such consultation to assist the non-Federal project
sponsor in providing an accurate description of the project as it
relates to the anticipated environmental impact statement or
environmental assessment-associated government costs and understanding
the anticipated scope of the environmental review including whether to
prepare an environmental assessment or an environmental impact
statement.
Subpart 1216.9--Definitions
Sec. 1216.900 Definitions.
As used in this part, terms have the meanings provided in NEPA sec.
111, 42 U.S.C. 4336e. In addition:
(a) Authorization means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law to implement a
proposed action.
(b) Connected action means a separate Federal action within the
authority of NASA that is closely related to the proposed agency action
and should be addressed in a single environmental document because the
proposed agency action:
(1) Automatically triggers the separate Federal action, which
independently would require the preparation of additional environmental
documents.
(2) Cannot proceed unless the separate Federal action is taken
previously or simultaneously.
(3) Is an interdependent part of a larger Federal action that
includes a separate Federal action, which mutually depends on the
larger Federal action for their justification.
(c) Council or CEQ means the Council on Environmental Quality.
(d) Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
have a reasonably close geographic and temporal causal relationship to
the proposed action or alternatives.
(1) Effects include ecological (e.g., effects on natural resources
and on the components, structures, and functioning of affected
ecosystems), aesthetic, historic, cultural, economic (e.g., effects on
employment), social, or health effects. Effects appropriate for
analysis under NEPA may be either beneficial or adverse, or both, with
respect to these values.
(2) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include those effects that the agency has no ability to prevent due to
the limits of its regulatory authority, or that would occur regardless
of the proposed action, or that would need to be initiated by a third
party.
(e) Human environment means comprehensively the natural and
physical environment and the relationship of present and future
generations with that environment. (See
[[Page 39895]]
also the definition of effects in paragraph (d) of this section.)
(f) Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
(g) Major Federal action, as defined in 42 U.S.C. 4336e (10):
(1) In general. The term major Federal action means an action that
the agency carrying out such action determines is subject to
substantial Federal control and responsibility.
(2) Exclusion. the term major Federal action does not include:
(i) A non-Federal action--
(A) With no or minimal Federal funding; or
(B) With no or minimal Federal involvement where a Federal agency
cannot control the outcome of the project;
(ii) Funding assistance solely in the form of general revenue
sharing funds which 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 effect 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 (U.S.C. 636(a)), or title V of the Small Business
Investment Act of 1958 (15 U.S.C. 695 et seq.);
(v) Bringing 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; or
(vii) Activities or decisions that are non-discretionary and made
in accordance with the agency's statutory authority.
(h) Mitigation means measures that avoid, minimize, or compensate
for effects caused by a proposed action or alternatives as described in
an environmental document or record of decision and that have a nexus
to those effects. While NEPA requires consideration of mitigation, it
does not mandate the form or assumption of any mitigation. Mitigation
includes:
(1) Avoiding the impact altogether by not taking a certain action
or parts of an action.
(2) Minimizing effects by limiting the degree or magnitude of the
action and its implementation.
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(5) Compensating for the impact by replacing or providing
substitute resources or environments.
(i) NASA Responsible Official is the NASA official who will ensure
that planning and decision-making for each proposed Agency action
complies with the regulations in this subpart and with Agency NEPA
policy and guidance.
(j) NEPA means the National Environmental Policy Act, as amended
(42 U.S.C. 4321, et seq.).
(k) Notice of intent means a public notice that an agency will
prepare an environmental document and consider public comments.
(l) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(m) Reasonable alternatives mean a reasonable range of alternatives
that are technically and economically feasible, meet the purpose and
need for the proposed action, and, where applicable, meet the goals of
the agency or the non-Federal project sponsor.
(n) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(o) Record of environmental consideration is a brief document that
is used to describe a proposed action and explain why further
environmental analysis is or is not required.
(p) Scope consists of the range of actions, alternatives, and
effects to be considered in an environmental document. The scope of a
NEPA document may depend on its relationships to other NEPA documents.
(q) Tiering refers to the coverage of general matters in broader
environmental impact statements or environmental assessments (such as
national program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or basin-wide
program statements or ultimately site-specific statements)
incorporating by reference the general discussion and concentrating
solely on the issues specific to the statement subsequently prepared.
Subpart 1216.10--Severability
Sec. 1216.1000 Severability.
The subparts of this part are separate and severable from one
another. If any subpart or portion therein is stayed or determined to
be invalid, or the applicability of any subpart or portion therein to
any person or entity is held invalid, it is NASA's intention that the
validity of the remainder of the subparts will not be affected, with
the remaining subparts or portions therein to continue in effect.
[FR Doc. 2026-13245 Filed 6-30-26; 8:45 am]
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