National Environmental Policy Act Implementing Procedures
| Published date | 23 May 2019 |
| Citation | 84 FR 23805 |
| Record Number | 2019-10745 |
| Section | Notices |
| Court | National Endowment For The Humanities,National Foundation On The Arts And The Humanities |
Federal Register, Volume 84 Issue 100 (Thursday, May 23, 2019)
[Federal Register Volume 84, Number 100 (Thursday, May 23, 2019)]
[Notices]
[Pages 23805-23812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10745]
=======================================================================
-----------------------------------------------------------------------
NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
National Endowment for the Humanities
National Environmental Policy Act Implementing Procedures
AGENCY: National Endowment for the Humanities, National Foundation on
the Arts and the Humanities.
ACTION: Notice of Final National Environmental Policy Act Implementing
Procedures.
-----------------------------------------------------------------------
SUMMARY: This document contains the final National Endowment for the
Humanities (``NEH'') procedures for compliance with the National
Environmental Policy Act of 1969 (``NEPA''), as amended. This action is
necessary to implement these procedures and make them available to the
public on NEH's internet site.
DATES: These procedures are effective May 23, 2019.
FOR FURTHER INFORMATION CONTACT: Michael McDonald; (202) 606-8322;
[email protected].
SUPPLEMENTARY INFORMATION: NEH is an independent agency within the
executive branch of the United States government, established by the
National Foundation on the Arts and the Humanities Act of 1965. NEH
extends financial assistance to individuals and organizations to
support research, education, preservation, and public programs in the
humanities. It also has statutory authority to extend financial
assistance to cultural organizations to enable infrastructure
development and capacity building, including through the design,
purchase, construction, restoration, or renovation of facilities needed
for humanities activities and historic landscapes.
NEPA and implementing regulations promulgated by the Council on
Environmental Quality (``CEQ'') (40 CFR parts 1500-1508) established a
broad national policy to use all practicable means and measures,
including financial and technical assistance, in a manner calculated to
foster and promote the general welfare, as well as to create and
maintain conditions under which man and nature can exist in productive
harmony and fulfill the social, economic, and other requirements of
present and future generations of Americans.
The CEQ regulations implementing the procedural provisions of NEPA
are designed to ensure that this national policy, environmental
considerations, and associated public concerns are given careful
attention and appropriate weight in all decisions of the federal
government. Section 102(2) of NEPA and 40 CFR 1505.1 and 1507.3 require
federal agencies to develop and, as needed, revise implementing
procedures consistent with the CEQ regulations. NEH is issuing the
following NEPA implementing procedures that comply with NEPA and
supplement the CEQ regulations. Per 40 CFR 1507.3, CEQ has reviewed
these final implementing procedures for conformity with NEPA and the
CEQ regulations, and considered NEH's responses to comments from the
public.
The remaining sections of SUPPLEMENTARY INFORMATION will provide
background and address comments NEH received in response to its
proposed NEPA implementing procedures. Following the SUPPLEMENTARY
INFORMATION is the text of the final procedures.
Background
On October 15, 2018, NEH published a notice in the Federal Register
(83 FR 52235) advising the public of its intent to promulgate NEPA
implementing procedures, including a list of ``categorical exclusions''
(i.e., those actions which do not individually or cumulatively have a
significant effect on the human environment and for which, in the
absence of extraordinary circumstances, further environmental review
and documentation is not required). NEH solicited public comments on
its proposed procedures.
Consistent with CEQ regulations, NEH consulted with CEQ prior to
making its proposed implementing procedures available for public review
and comment. 40 CFR 1507.3. The comment period closed on November 15,
2018. NEH received comments from three individuals, which it posted to
the NEH website at https://www.neh.gov/public-comments-neh-rulemaking-and-other-notices.
[[Page 23806]]
Comments
One commenter expressed concern that NEH intends to issue these
procedures to inhibit its ability to fund humanities-related projects.
That commenter also questioned whether an NEH-funded project would ever
not receive a ``Finding of No Significant Impact.''
NEH has determined to issue these procedures because: (i) CEQ
regulations require that agencies adopt procedures to ensure that their
decision-making is consistent with the policies and purposes of NEPA
(40 CFR 1505.1 and 1507.3); (ii) CEQ specifically advised NEH to adopt
NEPA implementing procedures; and (iii) NEH identified a particular
need to adopt such procedures in light of recent agency efforts to
support projects involving the design, purchase, construction,
restoration, and renovation of facilities and historic landscapes.
These efforts, supported through NEH's Challenge Grant program, will
strengthen the institutional base of the humanities by enabling
infrastructure development and capacity building. NEH's NEPA
implementing procedures, and in particular the categorical exclusions,
will facilitate--rather than impede--NEH's grant making activities by
creating a protocol through which NEH and its award recipients will
assess whether and to what extent NEH-funded activities require
heightened environmental review as mandated by NEPA.
It bears emphasizing that the majority of NEH grant-making
activities (i.e., those supporting research, education, preservation,
and public programs in the humanities) are likely to fall under one of
NEH's ``General Categorical Exclusions,'' as activities having no
inherent potential for significant environmental impact, that require
no further environmental documentation or review.
As for NEH-funded construction, restoration, and renovation
projects, such projects must serve NEH's narrow statutory mission of
promoting humanities excellence. Accordingly, such projects most often
involve the construction or renovation of libraries, museums, and other
facilities that house and advance scholarly research. To maximize
public outreach, such NEH-funded construction activities often take
place in already-developed areas. For these reasons, except for
potential effects to historic sites, that NEH will evaluate under
Section 106 of the National Historic Preservation Act (``NHPA''), NEH-
funded construction and renovation projects generally pose minimal
potential impact to the human environment. Accordingly, to the extent
NEH has control and responsibility for such projects sufficient to
implicate NEPA in the first instance, NEH anticipates that most of
these projects are likely to fall under a Program Specific Categorical
Exclusion.
The second commenter similarly requested that NEH not implement
overly restrictive procedures that could otherwise impede the agency's
work. As explained above, much of NEH's business falls under one or
more ``General Categorical Exclusions,'' and NEH anticipates that most
NEH-funded projects involving construction and renovation for which NEH
has control and responsibility are likely to fall under a ``Program
Specific Categorical Exclusion.''
It bears emphasizing that NEH drafted its proposed categorical
exclusions with the dual goals of increasing administrative efficiency
in NEPA compliance and avoiding misuse of categorical exclusions that
could lead to non-compliance with NEPA requirements. Furthermore, it
developed its categorical exclusions after (i) carefully considering
each of its programs and activities; (ii) consulting with those NEH
staff members responsible for administering NEH grants involving
facility construction, restoration, renovation, and repair; (iii)
canvassing the categorical exclusions used by other federal agencies;
and (iv) consulting with CEQ. Based upon NEH's findings, which it
documented in an ``Administrative Record for NEH Proposed Categorical
Exclusions under NEPA,'' NEH does not believe its procedures are overly
restrictive or will unduly impede its work.
The third commenter submitted a number of proposed edits to NEH's
implementing procedures. The commenter explained that he based his
comments on simplifying the NEPA documentation process to ensure that
NEH invests its environmental analysis and documentation on those
actions that may significantly affect the quality of the human
environment and avoid unnecessary work. NEH addresses the commenter's
specific proposed edits in turn below.
First, the commenter proposed that NEH add text to the
``Applicability'' section of its procedures (Section 2) clarifying
those instances in which NEPA applies: Namely, (i) when NEH has a goal
and is actively preparing to make a decision on one or more alternative
means of accomplishing that goal and the effects can meaningfully be
evaluated; (ii) the proposed action is subject to NEH control and
responsibility; (iii) the proposed action would cause effects on the
human environment as defined in 40 CFR 1508.14; and (iv) the proposed
action is not statutorily exempt from the requirements of section
102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)).
NEH agrees that it would be helpful to add such clarification to
Section 2 of its implementing procedures. It notes that the limiting
language closely follows that set forth in the CEQ regulations and that
other agencies have included similar applicability guidelines within
their NEPA implementing procedures: For example, the Department of the
Interior (43 CFR 46.100) and the United States Forest Service (36 CFR
220.4).
Second, the commenter objected to NEH's proposal that actions
otherwise meeting the criteria for Program Specific Categorical
Exclusions require completion of a Record of Environmental
Consideration (``REC'') documenting NEH's determination that the
activity qualifies for a categorical exclusion. Although the commenter
acknowledged that other agencies impose similar documentation
requirements with respect to projects involving construction,
renovation, rehabilitation or other ground disturbance, he asked that
NEH consider making the documentation requirement for Program Specific
Categorical Exclusions optional, and suggested that NEH retain
discretion to complete such documentation based on ``risks.'' The
commenter contended that the requirement that NEH complete an REC will
increase the agency's paperwork burden with respect to actions that
should otherwise be excluded from documentation.
NEH agrees that activities meeting the criteria set forth within
its General Categorical Exclusions should require no further
documentation, as such activities generally pose no inherent potential
for significant environmental impacts. Accordingly, NEH did not propose
completion of a REC for these activities. In addition, NEH concurs with
the commenter's concern regarding the potential increase in burden that
could result by using the REC attached in Appendix B, and has deleted
it. NEH will document Program Specific Categorical Exclusions (Section
B of Appendix A) in a manner that aligns with NEH's NEPA implementing
procedures, but will not require the use of the REC to do so.
Specifically, for activities falling under a Program Specific
Categorial Exclusion, NEH will document whether extraordinary
circumstances exist, and in the absence of extraordinary
[[Page 23807]]
circumstances, NEH will require no further environmental documentation
such as would be required to conduct an environmental assessment
(``EA'') or an environment impact statement (``EIS''). Accordingly,
NEH's determination that such activities qualify for a categorical
exclusion will greatly reduce the documentation burden on NEH and its
award recipients by obviating the need for further environmental
review.
Third, the commenter proposed a series of edits to NEH's
enumeration of the ``extraordinary circumstances'' in Section 10 of its
implementing procedures that would require preparation of an EA or EIS.
Consistent with CEQ regulations (40 CFR 1508.27), and for the sake of
clarity, NEH agrees to define ``extraordinary circumstances'' as
arising when a typically-categorically excluded action has the
reasonable likelihood to result in individually or cumulatively
significant impacts on the public health, public safety, or the
environment.
Consistent with a number of federal court decisions, NEH further
agrees to add text to Section 10 clarifying that the phrase ``highly
controversial'' refers to a ``substantial'' and ``scientifically-
verifiable'' controversy regarding a project's impact. In addition, NEH
will eliminate from its list of potential ``extraordinary
circumstances'' reference to ``scientifically controversial'' effects,
which the above edit has made redundant.
The commenter further recommended that NEH delete from its list of
potential ``extraordinary circumstances'' reference to activities
reasonably likely to (i) have a greater scope or size than is normal
for the category of action; (ii) degrade already existing poor
environmental conditions or initiate a degrading influence, activity or
effect in areas not already significantly modified from their natural
conditions; and (iii) have a disproportionately high and adverse effect
on low income or minority populations (see Executive Order 12898). The
commenter questioned whether the presence of these circumstances alone
constitute ``extraordinary circumstances,'' and doubted those items'
utility as ``criterion for extraordinary circumstances.''
NEH notes that the situations listed in Section 10 of these
procedures are not themselves ``criterion of extraordinary
circumstances,'' but are rather examples of ``extraordinary
circumstances.'' NEH believes that the language it has added to these
procedures explaining that, to give rise to an ``extraordinary
circumstance,'' an action must have a reasonable likelihood of causing
a ``significant'' impact on public health, public safety, or the
environment, helps clarify that the list of enumerated effects are
illustrative of potential extraordinary circumstances, and are not
themselves dispositive. Accordingly, NEH has determined to retain
reference to degraded pre-existing conditions and disproportionate
effects on low income or minority populations, as it has now made clear
that such effects constitute ``extraordinary circumstance'' provided
they otherwise have a significant impact on human health, safety or the
environment.
NEH agrees with the commenter, however, that whether an activity is
likely to have a greater scope or size than is normal for the category
of action is not an especially helpful illustration of an activity
giving rise to an extraordinary circumstance, and accordingly, NEH will
delete that reference. Whether any particular action gives rise to
``extraordinary circumstances'' will necessarily depend on the action's
potential for significant impacts, which will most likely depend in
some measure on its scope or size relative to similar actions.
The commenter recommended that NEH delete the ``General Categorical
Exclusions'' from Appendix A of these procedures on the ground that
NEPA does not require that agencies ``establish categorical exclusions
for actions that do not affect the natural and physical environment and
the relationship of people with that environment.'' NEH disagrees.
While CEQ has made clear that NEPA applies only to ``Major Federal
Actions''--i.e., those actions with effects that ``may be'' significant
(40 CFR 1508.18)--it has also defined ``categorical exclusion'' to mean
those actions that do not individually or cumulatively have a
significant effect on the human environment (40 CFR 1508.4). In other
words, it is through the process of evaluating and issuing categorical
exclusions that agencies determine which of their actions will not
affect the natural and physical environment and the relationship of
people with that environment. As memorialized in its Administrative
Record for NEH Proposed Categorical Exclusions under NEPA, NEH
determined that the activities identified in its General Categorical
Exclusions have very little inherent potential for significant
environmental impact. Accordingly, NEH will not require preparation of
an REC for such activities or consideration of potential extraordinary
circumstances.
Moreover, NEH's inclusion within its General Categorical Exclusions
of routine administrative and management activities, the preparation of
regulations, and the approval and issuance of financial assistance to
support research, education, preservation, and public programs in the
humanities, is consistent with the categorical exclusions adopted by
numerous other federal agencies: For example, the Denali Commission (45
CFR part 900, Appendix B), the Department of the Interior (43 CFR
46.210), the Department of Health and Human Services--Indian Health
Services (58 FR 569), and the U.S. Forest Service (36 CFR 220.6
(adopting the categorical exclusions issued by the Department of
Agriculture at 7 CFR part 1b.3)).
The commenter further noted that NEH's explanation in Appendix B
that a categorical exclusion may only apply after NEH has determined
that a particular construction, renovation or rehabilitation project is
``not reasonably likely to have a significant effect on historic
properties'' is redundant of Section 10, in which NEH identified the
``significant effect on environmentally sensitive resources'' as a
potential extraordinary circumstance. NEH included this language in
Appendix B because the agency frequently supports projects involving
renovation, repair and/or rehabilitation of historic properties. For
such projects, NEH requires review under Section 106 of the NHPA. For
this reason, and notwithstanding the fact that NEH has determined to
delete Appendix B, NEH believes it is important that these NEPA
implementing procedures expressly state that a categorical exclusion
determination may not be made until after NEH has performed a review
under Section 106 of the NHPA and determined that there exist no
adverse effects to historic properties, or that any such effects can be
mitigated effectively.
The commenter further recommended that NEH delete from the second
Program Specific Categorical Exclusion those conditions requiring that
(i) there is no evidence of community controversy; (ii) the proposed
use will not substantially increase the number of motor vehicles at the
facility or in the area; and (iii) the construction or improvement will
not result in uses that exceed existing support infrastructure
capacities (road, sewer, water, parking, etc.). The commenter
recommended that each such condition be considered as a potential
extraordinary circumstance rather than a condition to a categorical
exclusion.
NEH agrees with the commenter's suggestion regarding ``community
controversy.'' Because NEH will identify as a possible extraordinary
circumstance effects that are ``highly controversial'' it would be
redundant and potentially
[[Page 23808]]
confusing to condition application of the second Program Specific
Categorical Exclusion on a lack of ``community controversy.'' Should a
project have effects that are reasonably likely to be ``highly
controversial,'' the presence of such extraordinary circumstances would
preclude application of a categorical exclusion.
NEH will, however, retain all other conditions associated with the
second Program Specific Categorical Exclusion, including those
pertaining to motor vehicle presence and existing infrastructure
capacity. Such conditions are consistent with those included in the
categorical exclusions of numerous other federal agencies: For example,
the Department of Commerce (74 FR 33204), the U.S. Missile Defense
Agency (79 FR 46410), the National Capital Planning Commission (1 CFR
601.12), and the Department of Homeland Security (71 FR 16790).
Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Orders 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, distribution impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. These procedures have not been designated a ``significant
regulatory action'' because they do not: (1) Have an annual effect on
the economy of $100 million or more or adversely affect in a material
way the economy; a section of the economy; productivity; competition;
jobs; the environment; public health or safety; or State, local, or
tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
Agency; (3) materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs, or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in these Executive Orders. The text of the complete proposed
procedures appears below.
Dated: May 17, 2019.
Michael McDonald,
General Counsel, National Endowment for the Humanities.
Table of Contents
1. Purpose
2. Applicability
3. Environmental Policy
4. Terms and Abbreviations
5. Federal and Intergovernmental Relationships
6. Applicant Responsibility
7. NEH Responsibility
8. Public Involvement
9. Environmental Review Process
10. Categorical Exclusions
a. General
b. Conditions
c. Extraordinary Circumstances
11. Environmental Assessments
a. Content
b. General Considerations in Preparing Environmental Assessments
c. Public Involvement
d. Actions Resulting From Assessment
e. Findings of No Significant Impact
f. Proposals Normally Requiring an Environmental Assessment
12. Environmental Impact Statements
a. Notice of Intent and Scoping
b. Preparation and Filing of Draft and Final Environmental
Impact Statements
c. Supplemental Environmental Impact Statement
d. Adoption
e. Proposals Normally Requiring an Environmental Impact
Statement
The National Environmental Policy Act Procedures for NEH
1. Purpose
These procedures implement the provisions of NEPA, 42 U.S.C. 4321
et seq. They adopt and supplement the CEQ regulations implementing
NEPA, 40 CFR parts 1500-1508, by establishing policy, directing
environmental planning, and assigning responsibilities in NEH to
prepare, review, and approve environmental documents, 40 CFR 1508.10,
that comply with NEPA.
2. Applicability
These procedures apply NEPA to NEH programs and activities,
including programs and activities carried out by state and local
governments, federally-recognized tribal governments and non-
governmental organizations with the use of NEH financial assistance,
when the following apply:
(a) The NEH has a goal and is actively preparing to make a decision
on one or more alternative means of accomplishing that goal and the
effects can meaningfully be evaluated (40 CFR 1508.23);
(b) The proposed action is subject to NEH control and
responsibility (40 CFR 1508.18);
(c) The proposed action would cause effects on the human
environment, which CEQ has interpreted comprehensively to include the
natural and physical environment and the relationship of people with
that environment (40 CFR 1508.14);
(d) The proposed action is not statutorily exempt from the
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).
3. Environmental Policy
It is the policy of NEH to:
(a) Start the NEPA process at the earliest possible time as an
effective decision-making tool while evaluating a proposed action;
(b) Comply with the procedures and policies of NEPA and other
related environmental laws, regulations, and orders applicable to NEH
actions;
(c) Provide guidance to applicants responsible for ensuring that
proposals comply with all appropriate NEH requirements;
(d) Integrate NEPA requirements and other planning and
environmental review procedures required by law or NEH practice so that
all such procedures run concurrently rather than consecutively;
(e) Encourage and facilitate public involvement in NEH actions that
affect the quality of the human environment;
(f) Use the NEPA process to identify and assess reasonable
alternatives to proposed NEH actions to avoid or minimize adverse
effects upon the quality of the human environment; and
(g) Use all practicable means consistent with NEPA and other
essential considerations of national policy to restore or enhance the
quality of the human environment and avoid, minimize, or otherwise
mitigate any possible adverse effects of NEH actions upon the quality
of the human environment.
4. Terms and Abbreviations
(a) For the purposes of this section, the definitions in the CEQ
regulations, 40 CFR parts 1500 through 1508, are adopted and
supplemented as set out in paragraphs (a)(i) through (vi) of this
section. In the event of a conflict the CEQ regulations apply.
(i) Action. Action and Federal action as defined in 40 CFR 1508.18
include projects and programs entirely or partly financed, assisted,
conducted, regulated, or approved by NEH.
(ii) Applicant. The state, local or federally-recognized tribal
government or non-governmental partner or organization applying to NEH
for financial assistance or other approval. An applicant may be an
organization
[[Page 23809]]
already in receipt of NEH-awarded funds.
(iii) Approving Official. The NEH Chairman or an NEH staff member
designated by the NEH Chairman to fulfill the responsibilities defined
in Section 6 below, including overseeing development of and approval of
the NEPA document.
(iv) Finding of No Significant Impact (FONSI) is a document by NEH
briefly presenting the reasons why an action, not otherwise excluded as
provided in Section 10 below, will not have a significant impact on the
human environment and for which an EIS will not be prepared.
(v) NEH Proposal (or Proposal). A proposal, as defined at 40 CFR
1508.23, is an NEH proposal whether initiated by NEH, another federal
agency or an applicant.
(vi) NEH Chairman: The Chairman of NEH, as established in Section 7
of the National Foundation on the Arts and the Humanities Act of 1965,
20 U.S.C. 956.
(b) The following abbreviations are used throughout these
procedures:
(i) CATEX--Categorical exclusions;
(ii) CEQ--Council on Environmental Quality;
(iii) EA--Environmental assessment;
(iv) EIS--Environmental impact statement;
(v) FONSI--Finding of no significant impact;
(vi) NEPA--National Environmental Policy Act of 1969, as amended;
(vii) NOI--Notice of intent; and
(viii) ROD--Record of decision.
5. Federal and Intergovernmental Relationships
NEH occasionally partners with federal, state and local agencies,
and federally-recognized tribal governments, and may depend on these
governmental agencies for project management. Under such circumstances,
NEH may rely on the expertise and processes already in use by
partnering agencies to help prepare NEH NEPA analyses and documents.
(a) With federal partners, NEH will work as either a joint lead
agency (40 CFR 1501.5 and 1508.16) or cooperating agency (40 CFR 1501.6
and 1508.5). NEH may invite other Federal agencies to serve as the lead
agency, a joint lead agency, or as a cooperating agency.
(b) Consistent with 40 CFR 1508.5, NEH may invite state and local
government partners, and federally-recognized tribal governments, to
serve as cooperating agencies.
6. Applicant Responsibility
Applicants shall work under NEH direction provided by the Approving
Official, and assist NEH in fulfilling its NEPA obligations by
preparing NEPA analyses and documents that comply with the provisions
of NEPA (42 U.S.C. 4321-4347), the CEQ regulations (40 CFR parts 1500
through 1508), and the requirements set forth in this part.
Applicants shall follow NEH direction when they assist NEH with the
following responsibilities, among others:
(a) Prepare and disseminate applicable environmental documentation
concurrent with a proposal's engineering, planning, and design;
(b) Create and distribute public notices;
(c) Coordinate public hearings and meetings as required;
(d) Submit all environmental documents created pursuant to these
procedures to NEH for review and approval before public distribution;
(e) Participate in all NEH-conducted hearings or meetings;
(f) Consult with NEH prior to obtaining the services of an
environmental consultant; in the case that an EIS is required, the
consultant or contractor will be selected by NEH; and
(g) Implement mitigation measures included as voluntary commitments
by the applicant or as requirements of the applicant in NEH decision
documents (FONSI or ROD).
7. NEH Responsibility
(a) The NEH Chairman or his/her designee shall designate an
Approving Official for each NEH proposal, and shall provide
environmental guidance to the Approving Official;
(b) The Approving Official shall provide direction and guidance to
the applicant as well as identification and development of required
analyses and documentation;
(c) The Approving Official shall make an independent evaluation of
the environmental issues, take responsibility for the scope and content
of the environmental document (EA or EIS), and make the environmental
finding;
(d) The Approving Official shall ensure mitigation measures
included in NEH decision documents (FONSI or ROD) are implemented; and
(e) The Approving official shall be responsible for coordinating
communications with cooperating agencies and other federal agencies.
8. Public Involvement
NEH will make diligent efforts to involve the public in preparing
and implementing its NEPA procedures in accordance with 40 CFR
1501.4(b), 1506.6 and part 1503. When developing a plan to include the
public and affected parties in the environmental analysis process, NEH
will consider the following factors: (a) The magnitude of the
environmental considerations associated with the proposal; (b) the
extent of expected public interest; and (c) any relevant questions of
national concern. NEH will specifically publish EAs and draft FONSIs on
its website as provided in Section 11(c) below.
9. Environmental Review Process
The environmental review process is the investigation of potential
environmental impacts to determine the environmental process to be
followed and to assist in the preparation of the environmental
document. NEH shall specifically determine whether any NEH proposal:
(a) Is categorically excluded from preparation of either an EA or
an EIS;
(b) Requires preparation of an EA; or
(c) Requires preparation of an EIS.
10. Categorical Exclusions
(a) General. A categorical exclusion (``CATEX'') is defined in 40
CFR 1508.4 as a category of actions which do not individually or
cumulatively have a significant effect on the human environment and for
which, in the absence of extraordinary circumstances, neither an EA nor
an EIS is required. Actions that meet the conditions in paragraph (b)
of this section and are listed in section A of appendix A of these
procedures can be categorically excluded from further analysis and
documentation in an EA or EIS. Actions that meet the screening
conditions in paragraph (b) of this section and are listed in section B
of appendix A require documentation.
(b) Conditions. The following three conditions must be met for an
action to be categorically excluded from further analysis in an EA or
EIS.
(i) The action has not been segmented (too narrowly defined or
broken down into small parts in order minimize its potential effects
and avoid a higher level of NEPA review) and its scope includes the
consideration of connected actions and, when evaluating extraordinary
circumstances, cumulative impacts.
(ii) No extraordinary circumstances described in paragraph (c) of
this section exist.
(iii) The proposed action fits within one of the categorical
exclusions described in either section of Appendix A of this part.
(c) Extraordinary Circumstances. Any action that normally would be
classified as a CATEX but could involve extraordinary circumstances
will
[[Page 23810]]
require appropriate environmental review documented in an NEH CATEX
checklist to determine if the CATEX classification is proper or if an
EA or EIS should be prepared. Extraordinary circumstances to be
considered include those reasonably likely to:
(i) Have effects on the environment that are highly controversial:
i.e., a controversy that is both substantial and scientifically-
verifiable.
(ii) Have effects on the human environment that are highly
uncertain, involve unique or unknown risks, or involve unresolved
conflicts concerning alternative uses of available resources;
(iii) Establish a precedent for future action or represent a
decision in principle about future actions with potentially significant
environmental effects;
(iv) Relate to other actions with individually insignificant but
cumulatively significant environmental effects;
(v) Degrade already existing poor environmental conditions or
initiate a degrading influence, activity, or effect in areas not
already significantly modified from their natural condition;
(vi) Have a disproportionately high and adverse effect on low
income or minority populations (see Executive Order 12898);
(vii) Limit access to and ceremonial use of Indian sacred sites on
federal lands by Indian religious practitioners or adversely affect the
physical integrity of such sacred sites (see Executive Order 13007);
(viii) Threaten a violation of a federal, tribal, state or local
law or requirement imposed for the protection of the environment;
(ix) Significantly affect subsistence activities; or
(x) Significantly affect environmentally sensitive resources, such
as (A) properties listed, or eligible for listing, in the National
Register of Historic Places; (B) species listed, or proposed to be
listed, on the List of Endangered or Threatened Species, or their
habitat; or (C) natural resources and unique geographic characteristics
such as historic or cultural resources; park, recreation or refuge
lands; wilderness areas; wild or scenic rivers; national natural
landmarks; sole or principal drinking water aquifers; prime farmlands;
special aquatic sites (defined under Section 404 of the Clean Water
Act); floodplains; national monuments; and other ecologically
significant or critical areas.
11. Environmental Assessments
An EA is required for all proposals, except those exempt from NEPA
or categorically excluded under these procedures, and those requiring
an EIS. An EA is not necessary if the NEH has decided to prepare an
EIS. EAs provide sufficient evidence and analysis to determine whether
to prepare an EIS or issue a finding of no significant impact (FONSI).
In addition, an EA may be prepared on any action at any time in order
to assist in planning and decision making, to aid in NEH's compliance
with NEPA when no EIS is necessary, or to facilitate EIS preparation.
EAs shall be prepared in accordance with these procedures and shall
contain analyses to support conclusions regarding environmental
impacts. If a FONSI is proposed, it shall be prepared in accordance
with Section 11(e) below.
(a) Content
(i) The EA shall include brief discussions of the need for the
proposal; of alternatives to the proposal as required by NEPA section
102(2)(E); and of the environmental impacts of the proposal and
alternatives. The EA shall also include a listing of agencies and
persons consulted in the preparation of the EA.
(ii) The EA may describe a broad range of alternatives and proposed
mitigation measures to facilitate planning and decision-making.
(iii) The EA should also document compliance, to the extent
possible, with all applicable environmental laws and Executive Orders,
or provide reasonable assurance that those requirements can be met.
(iv) The EA should be a concise public document. The level of
detail and depth of impact analysis will normally be limited to the
minimum needed to determine the significance of potential environmental
effects.
(b) General Considerations in Preparing Environmental Assessments
(i) Adoption of an EA. NEH may adopt an EA prepared for a proposal
before NEH by another agency or an applicant when the EA, or a portion
thereof, addresses the proposed NEH action and meets the standards for
an adequate analysis under these procedures and relevant provisions of
40 CFR parts 1500 through 1508, provided that NEH makes its own
evaluation of the environmental issues and takes responsibility for the
scope and content of the EA in accordance with 40 CFR 1506.5(b).
(ii) Incorporation by reference into the EA. Any document may be
incorporated by reference in accordance with 40 CFR 1502.21 and used in
preparing an EA in accordance with 40 CFR 1501.4(b) and 1506.5(a),
provided that NEH makes its own evaluation of the environmental issues
and takes responsibility for the scope and content of the EA in
accordance with 40 CFR 1506.5(b).
(iii) Applicant responsibility. The applicant shall assist NEH with
preparing the EA. NEH remains responsible for compiling the public
hearing summary or minutes, where applicable; and copies of any written
comments received and responses thereto.
(c) Public Involvement
(i) In accordance with 40 CFR 1506.6, the Approving Official shall
publish EAs and draft FONSIs on the NEH website and make such documents
available for public comment for not less than 15 calendar days.
(ii) NEH will only take final action on an EA and draft FONSI after
it reviews and considers public comments.
(d) Actions Resulting From Assessment
(i) Accepted without modification. NEH may accept a proposal
without modifications if the EA indicates that the proposal does not
have significant environmental impacts and a FONSI is prepared in
accordance with Section 11(e) below.
(ii) Accepted with modification. If an EA identifies potentially
significant environmental impacts, the proposal may be modified to
eliminate such impacts. Proposals so modified may be accepted by NEH if
the proposed changes are evaluated in an EA and a FONSI is prepared in
accordance with Section 11(e) below.
(iii) Mitigated FONSI. If mitigation is required to reduce the
impacts below significant the FONSI shall identify the mitigation and
adopt applicable monitoring and enforcement measures that are necessary
to ensure the implementation of the mitigation measures.
(iv) Prepare an EIS. NEH shall require that the proposal be
evaluated in an EIS, prepared in accordance with Section 12 below, if
the EA indicates significant environmental impacts that are not
mitigated below a specified level of significance.
(v) Rejected. NEH may always elect to reject a proposal.
(e) Findings of No Significant Impact
(i) Content. A FONSI shall include the EA or a summary of it and
shall note any other environmental documents related to it (40 CFR
1501.7(a)(5)). If the EA is included, the finding need not repeat any
of the discussion in the assessment but may incorporate it by
reference.
[[Page 23811]]
(ii) Publication. NEH shall make the final FONSI available to the
public on the NEH website.
(f) Proposals Normally Requiring an EA
Proposals that normally require preparation of an EA include
proposed actions that potentially result in significant changes to
established land use.
12. Environmental Impact Statements
An EIS is required when the project is determined to have a
potentially significant impact on the human environment.
(a) Notice of Intent and Scoping
NEH shall publish an NOI, as described in 40 CFR 1508.22, in the
Federal Register as soon as practicable after NEH makes a decision to
prepare an EIS. If there will be a lengthy period of time between NEH's
decision to prepare an EIS and its actual preparation, NEH may defer
publication of the NOI until a reasonable time before preparing the
EIS, provided that NEH allows a reasonable opportunity for interested
parties to participate in the EIS process. NEH and the applicant will
coordinate during the time period prior to the publication of the NOI
to identify: the scope of the action, potential modifications to the
proposal, potential alternatives, environmental constraints, potential
timeframes for the environmental review, and federal, state, or tribal
entities that could be interested in the project, including those with
the potential to become cooperating agencies. Through the NOI, NEH
shall invite comments and suggestions on the scope of the EIS.
Publication of the NOI in the Federal Register shall begin the
public scoping process. The public scoping process for an NEH EIS shall
allow a minimum of 15 days for the receipt of public comments.
(b) Preparation and Filing of Draft and Final EISs
(i) General. EISs shall be prepared in two stages and may be
supplemented.
(ii) Format. The EIS format recommended by 40 CFR 1502.10 shall be
used unless NEH makes a determination on a particular project that
there is a reason to do otherwise. In such a case, the EIS format must
meet the minimum requirements prescribed in 40 CFR 1502.10, as further
described in 40 CFR 1502.11 through 1502.18.
(iii) Applicant role. The draft or final EIS shall be prepared by
NEH with assistance from the applicant under appropriate guidance and
direction from the Approving Official.
(iv) Third-party consultants. A third-party consultant selected by
NEH or in cooperation with a cooperating agency may prepare the draft
or final EIS.
(v) NEH responsibility. NEH shall provide a schedule with time
limits, provide guidance, participate in the preparation, independently
evaluate, and take responsibility for the content of the draft and
final EIS.
(vi) Filing. After a draft or final EIS has been prepared, NEH
shall file the EIS with the Environmental Protection Agency (``EPA'')
for publication of a notice of availability in accordance with 40 CFR
1506.9 and 1506.10.
(vii) Draft to final EIS. When a final EIS does not require
substantial changes from the draft EIS, NEH may document required
changes in errata sheets, insertion pages, and revised sections. NEH
will then circulate such changes together with comments on the draft
EIS, responses to comments, and other appropriate information as its
final EIS. NEH will not circulate the draft EIS again; however, NEH
will post the EIS on its website and provide the draft EIS if
requested.
(viii) Record of decision. A record of decision (ROD) will be
prepared in accordance with 40 CFR 1505.2 and 1505.3.
(c) Supplemental EIS
(i) Supplements to either draft or final EISs shall be prepared, as
prescribed in 40 CFR 1502.9, when NEH finds that there are substantial
changes proposed in a project that are relevant to environmental
concerns, or when there are significant new circumstances or
information relevant to environmental concerns and bearing on the
proposed action or its impacts.
(ii) Where NEH action remains to be taken and the EIS is more than
three years old, NEH will review the EIS to determine whether it is
adequate or requires supplementation.
(iii) NEH shall prepare, circulate and file a supplement to an EIS
in the same fashion (exclusive of scoping) as a draft and final EIS. In
addition, the supplement and accompanying administrative record shall
be included in the administrative record for the proposal. When an
applicant is involved, the applicant shall, under the direction of the
Approving Official, provide assistance.
(iv) An NOI to prepare a supplement to a final EIS will be
published in those cases where a ROD has already been issued.
(d) Adoption
(i) NEH may adopt a draft or final EIS or portion thereof (see 40
CFR 1506.3), including a programmatic EIS, prepared by another agency.
(ii) If the actions covered by the original EIS and the proposal
are substantially the same, NEH shall recirculate it as a final
statement. Otherwise, NEH shall treat the statement as a draft and
recirculate it except as provided in paragraph (iii) of this section.
(iii) Where NEH is a cooperating agency, it may adopt the EIS of
the lead agency without recirculating it when, after an independent
review of the EIS, NEH concludes that its comments and suggestions have
been satisfied.
(iv) When NEH adopts an EIS which is not final within the agency
that prepared it, or when the action it assesses is the subject of a
referral under 40 CFR part 1504, or when the EIS's adequacy is the
subject of a judicial action which is not final, NEH shall so specify.
(e) Proposals Normally Requiring an EIS
Given the nature of NEH activities, there are no proposals that
would normally require use of an EIS. NEH would most likely use an EA
in any given case to determine whether a project has a potentially
significant impact on the human environment. The conclusion reached by
NEH in the EA would dictate whether it would then prepare an EIS.
Appendix A to the National Environmental Policy Act Procedures for NEH
Actions consistent with any of the following categories are, in the
absence of extraordinary circumstances, categorically excluded from
further analysis in an EA or EIS:
A. General Categorical Exclusions
1. Routine administrative and management activities including, but
not limited to, those activities related to budgeting, finance,
personnel actions, procurement activities, compliance with applicable
executive orders and procedures for sustainable or ``greened''
procurement, retaining legal counsel, public affairs activities (e.g.,
issuing press releases, newsletters and notices of funding
availability), internal and external program evaluation and monitoring
(e.g., site visits), database development and maintenance, and computer
systems administration.
2. Preparing, revising, or adopting regulations, including those
that implement without substantial change the regulations,
instructions, directives, or guidance documents from other Federal
agencies.
[[Page 23812]]
3. Routine activities undertaken by NEH to support its program
partners, such as serving on task forces, ad hoc committees or
representing NEH interests in other forums.
4. Approving and issuing financial assistance to support research,
education, preservation, and public programs in the humanities, except
where such assistance supports the construction, restoration, or
renovation of facilities, including the purchase or lease of new
infrastructure, or otherwise involves ground disturbing activity.
5. Approving and issuing financial assistance to support facility
planning and design.
6. Approving and issuing grants to support the purchase or lease of
preexisting infrastructure.
7. Nondestructive data collection, inventory, study, research, and
monitoring activities.
B. Program Specific Categorical Exclusions
Actions consistent with any of the following categories are, in the
absence of extraordinary circumstances, categorically excluded from
further analysis and documentation in an EA or EIS. A categorical
exclusion determination may only be made after NEH has, if necessary,
performed a review under Section 106 of the National Historic
Preservation Act (``NHPA'') and determined and documented that such
action is not reasonably likely to have an adverse effect on historic
properties.
1. Upgrade, repair, maintenance, replacement, or minor renovations
and additions to facilities, grounds and equipment, including but not
limited to, roof replacement, foundation repair, access ramp and door
improvements pursuant to the Americans with Disabilities Act (``ADA''),
weatherization and energy efficiency related improvements, HVAC
renovations, painting, floor system replacement, repaving parking lots
and ground maintenance, that do not result in a change in the
functional use of the real property.
2. Construction, purchase or lease of new infrastructure,
including, but not limited to, museums, libraries and other community
buildings, and office space, that is similar to existing land use if
the area to be disturbed has no more than two 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 the construction or improvement is
consistent with those of existing, adjacent, or nearby buildings.
c. The proposed use will not substantially increase the number of
motor vehicles at the facility or in the area.
d. The construction or improvement will not result in uses that
exceed existing support infrastructure capacities (road, sewer, water,
parking, etc.).
3. Construction, purchase or lease of new infrastructure,
including, but not limited to, museums, libraries and other community
buildings, and office space, where such construction, purchase or lease
is for infrastructure of less than 12,000 square feet of useable space.
4. Demolition, disposal, or improvements involving buildings or
structures when done in accordance with applicable regulations,
including those regulations applying to removal of asbestos,
polychlorinated biphenyls (PCBs), and other hazardous materials.
[FR Doc. 2019-10745 Filed 5-22-19; 8:45 am]
BILLING CODE 7536-01-P
